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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.
It's going to cost a certain amount of money to mirror a harddrive (say 60-70 dollars for a medium size drive and maybe 40 tops for commercial software. Not that bad. I assume they're trying to draw into question whether the email was ever received and will use the mirror to prove no copies were ever stored on the drive. Is it spam if you don't store it on your computer? (Obviously I still think it is but the law's a twisty thing if it hasn't been bolted down.)
So you cheerfully hand over your live CD with Knoppix.
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.
Two problems:
First problem is, sites like Yahoo! mail and Hotmail use a lot of Javascript to render the message. (Especially GMail which uses nothing but AJAX.) When you visit a site, your browser downloads the javascript code and base HTML and caches it. However any additional data the javascript downloads, and any modifications to the HTML the script makes, are NOT cached.
Second problem is: <META HTTP-EQUIV="CACHE-CONTROL" CONTENT="NO-CACHE">
In either case, the data never touches the hard drive except maybe as part of the memory pagefile, which is highly volatile.
=Smidge=
If you feel entirely convinced that the "expert witness" demonstrably lied under oath, use your right to make a citizens arrest, and formally charge him with perjury. Lying under oath is a crime.
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.
And all this time I've been deleting spam I could have been using it to fund my retirement! Not sure what the wife will think when she logs into our joint e-mail account and finds a folder called "Special evidence" filled with Viagra and Penile enlargement ads though.
Crack - Free with every butt and set of boobs
How do you know he uses Internet explorer?
How do you know he runs Windows?
How do you know he doesn't have a crazy diskless webstation of some kind?
How do you know he doesn't read hotmail at the library?
How do you know he doesn't read hotmail on your computer?
How do you know he didn't read the email on his mobile phone?
How do you know he owns a computer?
So you see, receiving web mail doesn't necessarilly mean caching (not storing, but caching) the message in the Internet explorer cache on a Windows PC. He could have printed that spam using an impact transfer ribbon-type printer. By your logic, the defendant could ask for all his old printer media. The demand that he produce his hard drive contents is, like you post, a red herring.
I am not a crackpot.
I'm only half kidding with this.. it wouldn't surprise me if they were looking for anything to slander the plaintiff with, or to at least muddy the waters of the case. Illegally downloaded music, etc..
oooops
I just tried to put my money where my mouth was.
I fired IE6 up went to hotmail and read a mail.
After closing its no longer there.
They must have changed something fairly recently (ie since I started using firefox) because they used to be there for all to see.
liqbase
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. ;)
And how [legally] savvy was [the OP]?
Rules of civil discovery are intentionally very liberal. There are many situations where pertinent information to the lawsuit that is discoverable could have been on his hard drive. Or should we just take his word that there are no copies of any of these messages on his hard drive? There are many possible circumstances where copies of the messages COULD be on his computer hard drive, and that alone should probably be enough to let the other side have a look.
What?
Don't you guys know anything about SMTP e-mail headers?
The purpose of inspecting the plaintiff's hard drive is to recover evidence that the e-mails were not sent by the defendant, right? And the plaintiff states the spam was sent to his webmail account, right?
There's no way that his browser cache would contain enough verifiable evidence to determine the true origin of the spam. What his browser downloads is an HTML representation of the original e-mail text, and a snippet of info from the mail headers. You won't be able to see all the mail headers in the file. The only way would be to download the e-mails from Yahoo and Hotmail via POP3, or IMAP, or possibly using HTTP if supported, to an authentic e-mail client on the plaintiff's PC - like Outlook, Thunderbird, Evolution, Eudora, etc... Are you still with me?
The only thing the defendant can hope to show is that the plaintiff lied to the court about downloading copies of the actual e-mails including the headers...
Somebody needs to use a clue stick on the judge. Why would somebody go to the trouble of faking e-mail headers to "extort" a measly $500 from an alleged spammer? Well, SCO maybe - but at least they publicly said they'd get 5 billion dollars, not 5 hundred...
"A little misunderstanding? Galileo and the Pope had a little misunderstanding."
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.
I happen to set my browsers caches to a RAM disk, and I wipe my paging file at every shutdown. So I would have had to have read those emails very recently.
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.
>>Second problem is:
. html#sec14.9.1
That's not what no-cache means. No-cache means that the caching client cannot use its cache to handle any subsequent requests without revalidfating with the server, so any further request to the same URI must be checked against the server. If the rtesponse from the server effectively says "your cache is valid" then it *can* use the cache.
See http://www.w3.org/Protocols/rfc2616/rfc2616-sec14
no-store is the directive that is *supposed* to prevent storage of the response.
Actually, I think it should be decided by which side has the most power. If the plaintiff is wealthy, yeah, string him up. But if the plaintiff is poor, he shouldn't have to provide shit.
Right? Isn't that how you think it should work?
Apology to Ubuntu forum.
Using Internet explorer (on windows...) go onto hotmail and read a few emails.
Then go into your internet cache and find the pages.
They exist.
You're wrong, thank you, drive through.
I explicitly turn off all web caches the second after I install them, because I always want to make sure I have a fresh copy of whatever I am browsing. No cache here, don't assume everyone is as big of an idiot as you are.
And they said zombies weren't real!
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.
I work in computer forensics, have submitted affidavits to court and appeared as a witness to be cross examined on my findings. It actually would not surprise me that a computer forensics expert witness might not actually know what he's talking about. Almost every computer forensics person I know who work on the biggest cases, are actually ex-police detectives with some computer training. They have a habit of strictly adhering to "best practices" in their computer forensics investigations, because that is really all they know. They don't understand enough to apply the creativity needed to extract all the important information or attack the other side with any really in-depth arguments. The more complex their affidavits, the greater the chance it and they will be ripped apart in court. They also want to play it safe and not stick their necks out under oath.
Although there are some "best practices" which should be adhered to (like evidence capture), evidence analysis can often benefit from creative approaches, since each case brings new challenges. Confining your analysis to
This often results in quite superficial opinion from expert witnesses on both sides. Few are capable or willing to get very creative and deliver the killer evidence. Regardless of whether they provide case winning evidence or just the stuffy old basics, they're still getting paid.
So what do I see as the end result in most cases where a judge does not understand that which he is judging? The situation where it does NOT come down to who is right, but rather it comes down to who has the most convincing expert witnesses. I see this time and time again and the lawyers all understand this. For them it seems to have become a game where it is all about manipulation of the judges perception, since that is where the weakest point in the whole game is. Not the other sides arguments, witnesses, testimony or affidavits. The judge is the focus, on both sides. The points of the case at hand comes second.
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.
That's not entirely true. Just because something MIGHT contain relevant evidence doesn't mean that it's automatically going to be within the scope of civil discovery. The revisions to the Federal Rules of Civil Procedure that will go into effect in a month specifically provide that absent "good cause", you don't have to produce data that is "not reasonably accessible due to undue burden or cost".
There's lots of wiggle room in those words, but in the example above, taking a look at printer ribbon wouild be unduly burdensome in most cases. (Technically, printer ribbon isn't "electronically stored information subject to 26(b)(2)(B), but that's pretty esoteric.) More to the point, in many cases items in the browser cache or in unallocated space on hard drives will NOT be "reasonably accessible" and thus is NOT within the scope of civil discovery (absent a showing of "good cause").
IAAL and I do this stuff for a living.
I'm all in favour of making spamming unprofitable: it's the only way we're going to get the scum out of business. However it helps if you are right in both legal and technical respects before getting involved.
The OP is wildly - and legally dangerously wrong - in both his post and in the Declaration he provides. Other people in this discussion have provided ample evidence that yes, your mails are stored on your hard-drive, not deliberately (as in a POP3 client way) but through caching mechanisms. Even if the originating server sets every no cache mechanism known to man, it's up the client to determine whether it is going to pay attention to these instructions.
Secondly, the Declaration is an attempt to say that the screengrabs the plaintiff took should be adequate to *prove* the offense the defendent is supposed to have committed. The judge, unsurprisingly, disagreed with the OP's opinion and ordered the hard-drive turned over.
It's worth considering why that might be. Is it because the judge is a technical incompetent or because the judge is unhappy with the way the plaintiff is unwilling to hand over any evidence in support of their case apart from some screengrabs? The point is not, as it says in the declaration, that headers would be as easy to fake as the screengrabs, but that the plaintiff is unwillingly to do anything to support their case.
The judge might be a technical incompetent, but it doesn't sound like he is a legal incompetent, which unfortunately the OP presents himself.
Well, IMHO, IANAL, but I would have done the following:
Go into Internet Explorer. Go to tools|internet options|Termporary Internet Files|Settings.
Set the "Amount of disk space to use" to a 10G or so.
Go and open every spam email.
Clone the hard drive.
Send it to the judge.
Voila.
You could have defeated any intent to have the case dismissed by the "expert witness" by doing something very simple.
"Let the Cache flow through you"
An analogy: if the government was prosecuting an child pornography case, and the defendant's website had kiddie porn up, it would be absolutely ludicrous for the defendant to request a mirror copy of the government computers used to find said kiddie porn under the theory that there might be something useful in the cache. It's irrelevant, it's distracting, and it's clearly being used in the current spam case as an attempt to intimidate the plaintiff.
Also (relating to the article, not this thread), shouldn't the title read "Spammer Can Have Accuser's Hard Drive," given the results of the ruling, or am I just too high on a coffee buzz to read properly?
Hmm... if suing a spammer, I'd recommend reading their emails via a browser from a computer at a library. Sure, maybe you read them elsewhere, but for the purposes of your complaint, go to the library and read them there, and mention that as your complaint. "I received spam, when I was checking my email as I often do via the PC at the library."
Then, if they need 'the hard drive', it's up to the ALA to fight it, and that's a fight no judge wants to start.
A.
Not with IE (or other HTTP 1.1 compliant browser), when the "Cache-Control: no-store" option is used! Or any other more restrictive Cache-Control option.
Even so, it is likely in the many months it takes to get in court that the PC cache will still have the fragments on the HDD, due to LRU. And what if you use a HTTP proxy and have IE configured for no local cache.
Even more unlikely is to find anything in SWAP space after a few days or normal usage, let alone many months to get to court.
I say the best situation for this request is to have a laptop, booted up on Knoppix Live CD, without any HDD (and only USB mem stick storage), running Linux/Firefox, talking to your mobile handset via bluetooth for Internet connect. Connected to HotMail with Exhibit A clearly visible for the judge to see the very piece of SPAM email the court claim is about. "Sure your honour, here is it, can I have a receipt for that $6000 piece of hardware, or do you just want the CD and memory stick?"
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.
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