Slashdot Mirror
Anti-Spam Suits and Booby-Trapped Motions
An example of a "booby-trapped" legal brief
with the pages still joined together
I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?
I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:
Judge Nault: You know what I think about these cases?Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.
I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)
Well, shoot, I can't complainIf you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.
Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.
So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.
Making a federal case out of itFortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).
First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.
Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.
The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:
- Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
- Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
- If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.
This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.
Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.
Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.
since folks don't even need to read TFA, just the 'summary'
Much Madness is divinest Sense --
To a discerning Eye --
Much Sense -- the starkest Madness
If the judge was doing the job s/he was being paid to do, then the judge would not have been "trapped".
What this minor experiment is showing is that we have judges who are abusing their position / authority and ruling from their own beliefs instead of from the Law.
And the mechanism for addressing that issue seems to be broken, also.
That's because average citizens don't throw people in jail for making them look bad. Judges have been known to do that.
*infuriated beeping from Mr. Haselton*
The clearer it becomes how random and arbitrary our system is.
We pretend to have a democratic system where the little guy has equal footing but in reality it is just propaganda to keep us docile. The entire system is basically set up to keep us working and consuming as slaves and to not get mad and spill over into a revolution.
It is really about naked power with random assertions of right and wrong used as cover for the attacks. That's why some times a charge will stick (it has a lot of power behind it) and other times, the person just gets away with doing the same thing (they have more power).
However, I would say that it has gotten worse (more obvious) over the last 20 years.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
State judges are elected. Trapping them would be very interesting to their future opponents, I am sure. No one should be afraid of angering judges with legitimate means and for legitimate ends. That is why most federal judges tend to look down on state judges, for better or for worse. I would like to see a PAC present some of your evidence to voters during the next election period. That would hit the judges were it hurts, and send a signal to others.
http://bgcommonsense.blogspot.com
Ok...wow. I was not previously familiar with this expression, and I'm not even sure how he came up with such a colorful simile, but I think I'm going to have to start using it.
I'm so enamored with it that I actually tried to close my <blockquote> with a </bobcat> tag. Got halfway through the first paragraph before I noticed.
--
"I personal[ly] think Unix is "superior" because on LSD it tastes like Blue." -- jbarnett
...who finds it depressing that several of the first comments on this article are mocking the person for attempting to follow through on the actions the law gives him access to? Unless there are people defending spam, I don't see what's wrong with anyone trying to hold the people involved accountable to some degree for their violation of the law.
It's not like this is going to eliminate spam, and it's not even like going the small claims court route is something that I find personally worth the effort. But that doesn't mean I'm inclined to think less of someone who does take legal action.
Reality has a conservative bias: it conserves mass, energy, momentum...
Ummm wrong. It is illegal to tape a phone conversation where BOTH parties are unaware.
Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as "one-party consent" statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)
Also, since most /.ers will read an article summary and REJECT its value without reading the whole article, I can see a judge reading the opening part of a motion, seeing that it has no merit and rejecting it.
IANAL (or judge), but in my limited experience, the first page is nothing more than a 'cover' page, describing the case number, date(s), names of the parties, jurisdiction, presiding judge, etc.
It contains no factual evidence as to the facts, evidence, or validity or lack thereof of the motion. So, his 'boobytrap' *does* mean that the motion was not read, other than the basic information as to what case it pertains to.
Basically, the judges are looking at the cover page and saying; "I'm not wasting my time with this, regardless of the facts or any duty of mine as a judge to actually rule on the law. The legislatures' decision to create this law and the constitutional rights of the victims of the lawbreakers to redress can go hang!".
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
But Washington (where Haselton lives) is not one of those states.
Despite all the 'pest' comments here, I am glad someone is actually doing this. I wish I had the time to do the same. The booby-trap is just freakin great. IMHO, the judge not reading the brief should be grounds for immediate reprimand. I mean, we trust out judicial system to (interpret then) carry out the laws that are passed. I don't care if they consider it being a pest, it's the law, and it's what they were hired for. I mean, the reality is that if they (the judges) are pestered by it, they are getting a slight taste of why the law was passed! The point to be made is that if every single spam resulted in a court case, the judicial system would be suffering from the same Denial-of-Service attack that our mail servers and inboxes are. That's why SPAM is a problem!
Fun Stat:
I admin a small ISP. We received about 80k emails per day, of which about 97% are rejected by our various antispam technologies (RBL, Bayesian, etc). To reject one message as spam, it takes as many as dozens of DNS queries and such (since many anti-spam technologies rely on the DNS infrastructure to propagate the Block List). So that 1KB spam can generate 10x or more in traffic to kill it. So those who try to trivialize spam as just a nuisance have no idea what it takes to deliver your email, relatively screened-out. And guess what, next week, if another major spammer enters the biz, these numbers could double or more, just on the whim of some spammer.
I didn't get into this level of detail in the article because I already had to trim it so much (yes, what you're looking at is the *trimmed* version :) ). However, I had the spammer call me on a special phone number where the first thing they hear is a recording saying "Thank you for calling blah blah blah company. Due to company policy, calls may be monitored or recorded." Then the caller presses 1. When they press 1, it rings through to my home phone with a special ring. There is no blah blah company, of course; the whole thing is just set up to catch people if I expect them to perjure themselves in court.
The full details are at the link given in the story:
http://www.judgejokes.com/karlie-jorgensen.html
Without that disclaimer, you would have been correct though.
While the above may be made up... here's a true one...
My wife got a "Daily Bread" (a bible based daily devotional) each month from her Grandmother from when she was a teenager till she turned 18. When she was in her twenties she had a conversation with one of her cousins (same grandmother), who claimed to have "saved her Daily Bread" for part of the down-payment on her new car. Seeing the look of confusion on my (not yet) wife's face, she explained that she had saved the $10 dollars she got in each of her "Daily Breads" each month!
Apparently my wife (to be) was able to find a few of them still in her bookshelves, and confirmed that they did indeed have $10 in the centers. My wife figures she must have recycled out at least $500.
She never told her Gran.
gus
.. if only.
Well - escalate by entering the phone number to the judge's office in the forms instead... Would be really interesting to overhear that conversation...
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
Suing spammers is a *great idea*... HOWEVER:
The real problem here is that it sounds like you sue everybody. Given that you started out by saying "The last few times" you tried to sue a spammer indicates that you've done this quite a few times. Judging from the content of some of the linked pages, it sounds like you constantly sue people in small claims court. The judge is probably assuming that you a)Have nothing better to do b)Don't understand that sometimes, life sucks and you don't get your way, or c) are mentally ill. You know what, they're probably right. I'm willing to bet that the same exact motion, filed by someone else would have been at least read. When you constantly bring people/groups to small claims over the slightest, practically inconsequential injustices you're going to run into a "Boy Who Cried Wolf" situation every single time... even for the important stuff. Despite what people think, those judges have some (comparatively) really important cases to try... such as landlord abuse of low income tenants, or some scumbag employer trying to screw a working mother out of her overtime pay. Understandably someone who, for example, constantly files motions against retail establishments for amounts of less than what it costs to file, even if all of a sudden your landlord decides to withhold your $1500 security deposit for no reason at all, they're going to just assume that you're being a prick again and tell you to piss off.
Although I've never had a job in the legal profession, for a number of years I had a job that I had in which I was asked to make snap judgments about various situations: I was a bouncer in a night club. (another job where it's very easy for people to assume you're a prick for doing your job the exact way you are supposed to) Normally(95% of the time), if a woman would come up to me and complain that a male customer was bothering them, it was pretty safe to assume that they were telling the truth, and depending on the severity of the complaint, I'd either keep an eye on them, go talk to them, or physically toss their ass out onto the sidewalk. However, there were women who would come in, and when someone (in a night club) would have the audacity to wink at them they would storm over to one of us and indignantly demand that the person get thrown out immediately. The first couple of times this happens with someone, you don't have much choice but to at least keep an eye on the person, but after the 5th time in a night, or the 10th time in a weekend, or even the 1st time that someone gets hurt because you're not able to see/respond to a much more serious problem occurring while you were dealing with their idiocy, you tend to just filter the complaints of that person out. It would be a real shame if something actually did happen to that person, but how the hell are we able to tell the difference between a legitimate and non legitimate complaint?
With the idiotic "I pay taxes" BS aside, that judge doesn't work for you... and wasting their time every time you can think up some reason to throw the book at someone won't win you any favor in the judges chamber. Unlike in bars, being a regular won't get you points.
Also, despite the way you are treating this, law suits aren't like an intellectually stimulating argument over whether or not someone violated the rules in a roll playing game, where most of the time the loudest, most abrasive nerd wins. These people have a lot of stuff on their plate to go through in a small amount of time. They are really not interested in hearing your long winded, overly detailed, explanation of every single possible way in which the defendants actions could have possibly annoyed you. There is a certain amount of respect you have to have for court room etiquette, and the time constraints of the people involved.
Also, on your linked page where you described the incident where you made the tape of the person agreeing to send out spam for you... you said that judge was constantly attempting to interrupt you. If you don't understand that when th
Wow. So, I've impeached President George W. Bush. Repeatedly.
I'm putting that on my resume. Right now.
I've fallen off your lawn, and I can't get up.
I've taken the time to read the entire transcript of your hearing with Judge Jorgensen. I am both a lawyer and someone who is closely-connected to the judicial system (and thus, posting as an AC), so I know what I'm talking about.
I don't have the time or energy to go through the transcript and give you a point-by-point defense of the Judge's ruling, or to show you where your case was lacking. I also have no intention for you to take this as legal adivce. But I feel the need to comment on several things that you need to think about if you're going to keep doing this:
1. The Judge rightfully got irritated with you because, like most laypeople, you don't know the difference between fact and law and between testimony and argument. A trial has two phases: presentation of evidence, then argument. During the presentation of evidence phase, the judge doesn't want to hear *why* you think the law applies; she wants to hear facts -- what happened, to whom, when, etc. Presentation of evidence is done on a witness-by-witness basis -- you call your first witness (in your case, it should have been you), and you present all of the evidence that witness has to give. Then you call your next witness, and present all of the information *that* witness has to give, etc. You jumped between questionning Spies, offering your own testimony, and offering argument, the questionning Spies again. That jumbles the presentation of evidence, and annoys judges.
2. Your theory of the case was not well-presented. Again, laypeople often don't have the training to present a legal argument in an easy-to-digest manner. I've always thought that the best way to teach how to do it is to think of the old proofs you had to learn in Geometry -- i.e. these things. You want to prove that Joe Spies sent you an e-mail. To prove that conclusion, you have to break that down into separate pieces- (a) you received an e-mail; (b) the e-mail contained a remove link to FullServices.com; (c) I looked up FullService.com's registration; (d) the registration lists a phone number of XXX-XXX-XXXX; (d) I called that number, and someone answered; (e) I asked that person's name; (f) the person said "Joe Spies"; etc. (Note that each step in the chain refers to something that is proven in the step before it. That's a chain of logic -- it's how things get proved, in geometry, or in court, or anywhere.) Before you ever go into court, outline your case exactly like this, and when it comes time to put on proof or to summarize you proof in a closing argument, work through this outline.
3. Of course, having a great outline doesn't work if you don't understand what it proves. In the chain I mention above, you have not proven that Joe Spies sent you an e-mail. You've proved that you received an e-mail, that a website is mentioned in that e-mail, and that Joe Spies answers the phone at the registered phone number of that website. That's it. Someone might reasonably *infer* from these facts that Joe Spies sent you the e-mail, and a circumstantial inference can be enough to prove a case, but under these facts, the inference isn't very strong. You didn't track headers to show FullServices.com is the sender of the e-mail (and you probably can't -- it probably came from a bot, or broken relay). You assumed that FullServices.com conspired with the sender simply because it is listed in the e-mail, but that assumption isn't warranted. You don't account the possibility that FullServices.com is just an innocent company hired by a spammer to maintain a remove list. The only proof you had that FullServices.com was somehow involved was your phone call, which has its own problems. Without any other proof of FullSerivce.com's involvement in the sending, you didn't prove Spies violated the law.
5. The Judge properly refused your transcript of the call for several reasons. First, I haven't looked up the law in Washington, but if it requires both parties' c