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Spammer Perjury is Worth Prosecuting
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:
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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.
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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.
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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.)
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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.
They just have an extremely casual relationship with objective reality.
Welcome to the Panopticon. Used to be a prison, now it's your home.
Spammers lie. Perjury convictions should be an automatic add-on.
JADBP
They will both end up as total failures.
never
Look, you know and I know that V1@GR@ V!C0D1|\| 3nl@rg3 Y0|_|R M3mb3r bible bracelet dragon carboard zapper free, but that's not really relevant to the legal issues here.
But it won't work because:
Your post advocates a
( ) technical (x) legislative ( ) market-based ( ) vigilante
approach to fighting spam. Your idea will not work. Here is why it won't work. (One or more of the following may apply to your particular idea, and it may have other flaws which used to vary from state to state before a bad federal law was passed.)
( ) Spammers can easily use it to harvest email addresses
( ) Mailing lists and other legitimate email uses would be affected
(x) No one will be able to find the guy or collect the money
( ) It is defenseless against brute force attacks
( ) It will stop spam for two weeks and then we'll be stuck with it
( ) Users of email will not put up with it
( ) Microsoft will not put up with it
(x) The police will not put up with it
(x) Requires too much cooperation from spammers
(x) Requires immediate total cooperation from everybody at once
( ) Many email users cannot afford to lose business or alienate potential employers
( ) Spammers don't care about invalid addresses in their lists
(x) Anyone could anonymously destroy anyone else's career or business
Specifically, your plan fails to account for
( ) Laws expressly prohibiting it
( ) Lack of centrally controlling authority for email
( ) Open relays in foreign countries
( ) Ease of searching tiny alphanumeric address space of all email addresses
(x) Asshats
(x) Jurisdictional problems
(x) Unpopularity of weird new taxes
( ) Public reluctance to accept weird new forms of money
( ) Huge existing software investment in SMTP
( ) Susceptibility of protocols other than SMTP to attack
( ) Willingness of users to install OS patches received by email
( ) Armies of worm riddled broadband-connected Windows boxes
( ) Eternal arms race involved in all filtering approaches
(x) Extreme profitability of spam
(x) Joe jobs and/or identity theft
(x) Technically illiterate politicians
(x) Extreme stupidity on the part of people who do business with spammers
(x) Dishonesty on the part of spammers themselves
( ) Bandwidth costs that are unaffected by client filtering
( ) Outlook
and the following philosophical objections may also apply:
(x) Ideas similar to yours are easy to come up with, yet none have ever
been shown practical
( ) Any scheme based on opt-out is unacceptable
( ) SMTP headers should not be the subject of legislation
( ) Blacklists suck
( ) Whitelists suck
( ) We should be able to talk about Viagra without being censored
( ) Countermeasures should not involve wire fraud or credit card fraud
( ) Countermeasures should not involve sabotage of public networks
( ) Countermeasures must work if phased in gradually
( ) Sending email should be free
( ) Why should we have to trust you and your servers?
( ) Incompatiblity with open source or open source licenses
(x) Feel-good measures do nothing to solve the problem
( ) Temporary/one-time email addresses are cumbersome
( ) I don't want the government reading my email
(x) Killing them that way is not slow and painful enough
Furthermore, this is what I think about you:
(x) Sorry dude, but I don't think it would work.
( ) This is a stupid idea, and you're a stupid person for suggesting it.
( ) Nice try, assh0le! I'm going to find out where you live and burn your
house down!
The dangers of knowledge trigger emotional distress in human beings.
A bigger problem with spammers perjuring in court...is getting the spammers in court in the first place.
All perjury should be punished. It's always a serious crime to knowingly screw up the legal system with lies. If a cop is caught committing perjury, the judge should be empowered to summarily strip him or her of their badge and gun the moment they get off the witness seat. If someone does it to avoid any punishment, their punishment should be automatically doubled, without mercy. If someone bears false witness against a defendant to get them convicted, they ought to be sentenced to the identical punishment that the defendant would have gotten, even up to the death penalty.
When you commit perjury, you are pretty much always denying someone justice. You simply cannot support a conservative enforcement of perjury and then bemoan the increasing lack of justice in the system.
Nice post. This is so true - especially the person sending the spam to claim that your address where given to them by referral or by business card (all lies).
The best thing to do is to publically name and shame a company. This is unfortunately only useful when that company/person has a public image.
I have not heard of a single successful spam prosecution in my country (South Africa), even though spamming is fairly widespread and there is a strict law on the books. There are a lot of people selling mailing lists (I.e. spam lists) fairly openly. Even some Internet Service Providers will sell your email address to other people.
Cops lie all the time too, and they never get punished. Why should spammers be any different?
..spammers lie.... what a concept.....
Sick of stupidity? http://www.patentlystupid.com
Perjury is already a crime, why take an oath?
Double Death Penalty! F-F-FINISH HIM!
Can all fish swim?
Bad joke I know ;)
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?
You're missing the point I think. Rules of Evidence introduce a level of formality that really would derail small claims court. In standard civil trials it's not uncommon for there to be a half-dozen hearings on evidentiary matters before trial. Plunking down what you claim to be a tape of the defendant would not be allowed; it would have to go on the pretrial exhibit list and both sides would have a copy. The defendant would be able to attack its validity in a pretrial hearing. The judge was in her rights to ignore it in this case.
Spam will save the economy!
Just imagine failed bankers going into spam instead. All Hot SUBPRIME MORTGAGES! Collateralised V!K@GKR@ Obligations! You will search an hour for your underwear in the ocean of your debt!
http://rocknerd.co.uk
Look, I'm no lawyer. Just a law school student. As a student, I have no time to respond in full, or even truly in part. It's just that bad.
I will say, however, as a bit of caution: there is no easier way to lose a small claims case than to bring a lawyer along with you, with the possible exception of attempting to act like you are an attorney by quoting the rules of evidence.
Judges don't like it, and with reason. Small claims is a simple procedure - evidence is presented, cases are decided in 10 minutes or less (often much less), and the matter goes on. Period.
The rules of evidence are very, very complicated. There's a reason people do hire lawyers, and a good reason to avoid these rules in small claims to keep the courthouse doors open to the people. When you start quoting the rules of evidence to a small claims court judge, don't expect a positive response. As a personal example, my brother-in-law went to small claims court against a party who did decide to bring along an attorney. As the sides began to examine witnesses (a process the judge allowed more to amuse the attorney than out of typical practice), the opposing side's attorney began to object to my brother-in-law's questions. Now, if you've read the rules of evidence, you know it's not easy to form a question that is safe from objection. This is why people hire attorneys to litigate on their behalf. The judge, however, refused to uphold any of the objections and, after overruling three of them, told the attorney to "sit down, shut up, and let the man ask his questions." Unsurprisingly, the side that had not brought an attorney prevailed in a big way.
I would recommend that this gentleman either get an attorney or stop with the cutesieness. Small Claims Judges don't like cutesy. They like simple, straightforward fact. Don't start quoting rules of evidence. Don't contrive ways around recording phone calls. Look up the statute, decide if you meet the basic requirements, and argue a simple, forthright case. Don't say things like "obviously". Don't argue law - argue fact.
Why should spammers be treated differently? You know justice is supposed to be blind, if they prosecute all spammers who perjure in court then they must prosecute EVERYONE who perjures in court. That means if little ol' grandma is getting sued by the RIAA and she says "I never downloaded any music!" but the RIAA produces some log from an ISP showing that her niece e-mailed her some Britney Spears song, well we'd have to persecute grandma for perjury. Judges don't generally want to do that to everyone and need to use their own judgment on how to treat the perjury.
You can't just ask the judges to be extra harsh on spammers. You'd first need to define what a spammer is. What if I have a huge mailing list of people that opted in and send out mass mails to everyone on the list? Well what if someone on the list forgets that they opted in? What if someone lost their domain name, then someone else takes it over and now they're getting my e-mails. That person didn't opt in am I now a spammer for sending them unsolicited mail? Well the Jehova's Witnesses make unsolicited visits to my house early in the morning, should we also prosecute them every time they perjure in court?
Perjury is a crime, but the judge has to make the final decision on whether or not to prosecute the perjurer, that decision should not be based on what the person is being accused of doing.
If someone bears false witness against a defendant to get them convicted, they ought to be sentenced to the identical punishment that the defendant would have gotten, even up to the death penalty.
So... treat it like pass interference?
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
Here's the spammer mentality:
"If you don't want to be bothered, you can always ignore my request for your attention."
They say: If you don't want it, ignore it.
So, what happens when you want to hear the truth from them?
"If I don't want to be bothered, I can always ignore your request to hear the truth from me."
Hell, I'd be happy if the existing penalties for perjury were imposed. Ever. For a really egregious and obvious example, see the case of Pamela Fish.
PHEM - party like it's 1997-2003!
You can argue till you turn blue and die that enforcement would actually reduce their workload in the great bye-and-bye but it Just Ain't Gonna Happen.
Lacking <sarcasm> tags,
Pretty much. Punishing people who fail to cooperate with the courts or mislead them deliberately need to be punish, in game theoretical terms it suddenly makes it a lot more attractive to tell the truth. It reminds me of some study about cheating in games, and how cheating goes up a lot slower with increasing number of players if players are punished for not reporting cheating. Also, being a Brit I get the imperssion that perjury is taken a lot more seriously here - see Jeffrey Archer and all the others who have ended up in jail, not on the original charges but on perjury charges.
Spammers are liars. But it's an oxymoron to say it.
I agree with you, although I think perjury is sometimes understandable, especially when it isn't to avoid criminal prosecution but to avoid embarrassment.
I wish that witnesses on the stand could ask to 'approach the bench' if they wished to. Or, at the very least, ask for a closed courtroom.
But, yes, anyone who lies to get out of punishment, anyone who is actually found guilty, should be prosecuted for perjury. Same with anyone who attempts to incriminate someone else.
If corporations are people, aren't stockholders guilty of slavery?
None of the examples you provided are clear, provable examples of perjury. A recording obviously isn't testimony. Maybe he lied to you when you were recording him? He wasn't under oath then. Maybe the guy saying he didn't even sell merchant accounts, didn't sell them at the time, but now he does? If you can think of a plausible scenario where what he said could technically be looked upon as true (even if you and I "know" he's lying), that's a far cry from being able to prove that he perjured himself. Even the case where the guy said the wrong e-mail address isn't quite open-and-shut. Is there really enough evidence to prosecute him? A civil trial has a lower burden of proof than a criminal one. Just because a judge awards you judgment(believing the defendant was lying) doesn't mean there's enough evidence to convict him of perjury.
Haven't I read this essay before?
I talk about stuff.
Can you prove, beyond reasonable doubt that he was lying, that he knew he was lying, and that the statement that contradicted the lie (e.g. the recorded telephone calls) were not actually misinformation to prevent a potential competitor from stealing his way of doing things?
And you, getting all your information under false pretenses (doesn't matter where you live, you got the info by lying, admittedly), are no better.
Guess in your eyes, committing fraud is ok, as long as you are going against something you don't find agreeable?
Just wondering, how you can possibly count yourself as a "dogooder", when your doing the exact same thing you accuse the spammers of doing.
lol.
--Toll_Free
Prosecuting spammers is like shouting at a dog that peed on your sports car's wheels. Waste of your time and the dog learns nothing.
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.
Damn. I think I'll be cracking pee jokes all day thanks to TFA.
:DDD
i loll'd pretty damn har-har-hard here!1
I've been to small claims court. The plaintiff said "He hasn't given me a dime". I said "I have the a copy of the cleared check right here". Guess what? The judge DID NOT CARE that she was lying! In any given small claims case, the judge assumes both sides are lying equally and splits the difference (the judge arbitrarily made me pay about half the amount she was requesting -- really! To this day, I have no idea where he came up with the number.) Which means if you go in there and simply TELL THE TRUTH, you get screwed! This is just my experience, but I believe people almost always lie in small claims court, and sanctions are never even considered -- after all, the participants aren't lawyers.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
It should be no surprise that spammers lie.
After all just look at typical spam emails.
So many spams have:
Fake Subject field
Fake Sender field
Other fake headers
Deceptive content
After all those lies do people actually believe they can send spammers real (humour me ok?) money and expect something that's not fake?
If judges can't see it's fraud (lying for personal gain) perhaps those judges are fakes too.
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."
Do you know what "inadmissible" means?
It's just as likely, and appropriate, for the Judge to say, "Well, if the defendant was found in a room holding a knife standing over a dead body which had just been stabbed to death, then they could very well be arrested for murder."
"The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial, is that it's just not worth it"
Tell that to Detroit Mayor Kwame Kilpatrick.
He lied in a civil trial and it cost him, dearly.
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.
Did the defence council object on the basis that you broke Rule 26 of the Federal Rules of Civil Procedure by not diclosing this information?
Small claims doesn't require a lawyer, and most people in small claims don't get one. You can only sue for up to something like $5,000 in small claims. It costs that much just to look a a lawyer. It's not worth hiring one to argue over the couple hundred bucks you're getting sued for. So... you're wrong.
You are using English. Please learn the difference between loose and lose; they're, there, and their; your and you're.
A Seattle-area judge has been accused of routinely interrupting litigants and lawyers and addressing them in a manner that is "angry, disdainful, condescending and/or demeaning."
The state Commission on Judicial Conduct claims in a statement of charges (PDF) that Judge Judith Eiler treated lawyers and self-represented litigants in a way that is "rude, impatient, undignified and intimidating," the Tacoma News Tribune reports.
Eiler underwent behavior therapy with an emphasis on sensitivity training after she received a reprimand in 2005 for impatient and rude behavior, the story says.
The way the she deals with people in her court shows that she should retire from the bench and do something else. Like become a correctional officer or something.
http://www.abovethelaw.com/judge_judy_judith_sheindlin/
If you want news from today, you have to come back tomorrow.
And you, getting all your information under false pretenses (doesn't matter where you live, you got the info by lying, admittedly), are no better.
"Everyone urinates, but if you do it in court..."
Stop posting these long-winded inexpert screeds on the law. You simply don't know what you're talking about as demonstrated repeatedly in article after article, and you do a great disservice to the Slashdot community by foisting your uninformed opinion on us as fact.
Let me point out two parts of Washington law that you might not be aware of that I was able to dig up with mere Google searches (and no need of Westlaw or any other expensive legal tools):
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."
Perhaps you should look at RCW 9.73.050. While the court doesn't have jurisdiction to see you fined or prosecuted for actions taken outside of the state completely that would be a violation RCW 9.73.030, they are not obligated to treat your out of state acts as not an ones that would be proscribed. You can't do an end-run around evidentiary rules that way. Note how nothing in the statute requires either party to be in Washington to count as a violation under the section 030 definitions referenced in 050. You conversation, therefore, still meets the exclusion rule.
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?
Evidence rules are normally relaxed in Small Claims Court for two reasons:
1) To keep the court proceedings simple for non-lawyers.
2) To keep the case from becoming overly long and complicated.
It seems like the second rationale controlled here. Whether you think that's right or not is a matter for Washington voters to fix and not grounds to question the moral integrity of the judges before everyone. The judge may have well only been doing what the law requires. See RCW 12.40.090 mandating informal hearings "with the sole object of dispensing speedy and quick justice between the litigants."
Small claims court is a different animal from real court. It's supposed to be court without need for lawyers. One of the consequences of that is that it doesn't follow all the rules. You've made an impressive effort to learn Washington law, but you haven't researched the problem deeply enough, so please stop writing these screeds about how awful your local judges are.
Lastly, your article once again reached its conclusion very early on and should've stopped there:
The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial, is that it's just not worth it.
Since the title of this article is that that's not true and you haven't really provided any evidence the cost-benefit analysis is any different (instead of rehashing whining about how small claims court didn't go your way AGAIN), the rest of this article should've been cut.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
B F D F LP
If you can't see the value in jet powered ants you should turn in your nerd card. - Dunbal (464142)
"then they could very well be arrested for perjury"
Perjury is lying by a witness under oath. The spammer on the telephone call you recorded and the letter sent to the court by the spammer were not made under oath so therefore they were not perjury.
If someone says he and his monkey have nothing to hide, they almost certainly do.
He whines about spammers not following the rules, then wants the judge to not follow the rules, or rather, wants the judge to follow his own rules, as if he knows more about that than the judge.
Especially thinking evidence in a Washington state court should follow rules in the state where he made the recording. Number one rule in court: don't piss off the judge.
Infuriate left and right
You're making the totally unfounded assumption that the purpose of a law is to be obeyed. On the contrary, the purpose of many laws is to stroke some group of constituents while remaining secure in the knowledge that the law will never be enforced. CAN-SPAM is a good example, as are the plethora of bills passed each year that are immediately rejected as unconstitutional. Again.
Lacking <sarcasm> tags,
The entire quote at the top of this article seems ludicrous. Yes we all think spammers are scum, but this article is a waste of space. These days just about anyone who thinks they can get away with it will lie under oath when it suits them.
I cannot imagine a common law court that would prosecute a defendant for _saying_ he didn't commit a crime. By your reasoning, entering a "not guilty" plea and subsequently being found guilty would automatically infer perjury.
I rather enjoyed the poster's comments and read them fully, as I did his previous postings.
His overall tone and conclusion is that the system doesn't work for us common folk, which reflects my own experience with the court system.
It's a simple problem in game theory: people will do the least amount of work for the maximum amount of gain. As applied to judges (or any government employee), that means showing up late, not bothering to read paperwork, and generally opting for the shortest path to going home early.
The expected slashdot comment for this type of post should read something like "Government employee doesn't do their job, film at 11".
I've anecdotally polled several people about the cost benefits of taking someone to small claims court, and the overwhelming opinion is that it's not worth it. Judges are arbitrary, don't know the law, and don't bother to enforce it.
Think about what this means for a moment: the general population (again, my polls are anecdotal) has lost faith in the idea of taking someone to court to have their grievances settled.
You appear to talk with the authority of a lawyer, or maybe you're a judge yourself. Good for you! Tearing down an (obviously) non-lawyer is trivial for someone at your level of learning and experience.
Now explain to me how his conclusions are wrong, that the system works as advertized, and any sense of justice is ever accomplished.
Don't forget the millions of criminal border violators who commit perjury by signing the I-9.
You jump from the legal system to ethical claim. Implicitely it seems you're assuming every legal crime should be punished. Fortunately, apart from Hobbesian psychopaths, no one believes that.
\u262D = \u5350
Your experience with judges just reinforces Sturgeon's Law. That's the reason I oppose a death penalty - it's not a matter of deservedness.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
To make myself clear, if the government decides to decapitate mormons and you're a mormon, it's ok to lie in court. And you emphatically shouldn't be prosecuted for it.
\u262D = \u5350
judith.eiler@kingcounty.gov
It seems to me that Mr.Haselton has admirable goals, but arguing with judges about your improper legal procedure isn't going to work. Does he need to go to law school, hire a real lawyer, or what? Surely somebody here is a lawyer and can explain how Haselton (and others of us who might be so inclined) ought to go about suing spammers?
The government can't save you.
You had me right up until
That is when you blew it. All perjurers should be prosecuted. That Clinton and Kilpatrick were covering up extra-marital affairs is irrelevant.
The two biggest problems with the laws today is that there are too many of them and that people wish to pick and choose which laws to enforce when. Either one enforces the law or one doesn't. Either the law applies to everyone, equally, or the law should apply to no one.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
A drug warrior is one that participates in the war on drugs. I cannot believe you have never heard the term.
A drug warrior is one that believes criminal legislation will rid the world of all drugs and all the supposedly bad things that happen because of them.
A drug warrior believes that all drug users are losers and all outcomes are horrible.
Anyone with any sense knows this is false and the "war" and criminalization has only made things worse.
A drug warrior is just as misguided as these self-appointed spam warriors.
But then with all the cops unemployed who would protect the crispy creams of the world?(/joke)
I have even had a judge try to make me feel better after finding me guilty (in traffic court) by telling me he knew the cop was lying. IMHO that is somewhat why jury trials (with a good lawyer) usually gets found innocent. When (some/most???) COPS give a ticket (etc), they are convinced it is justified. So what I see is COPS will state whatever they think is needed to get a conviction. Since they see the other side do this so often, and their is no punishment they (IMHO) think their justified. the 3 problems with this is: (1) Knowing this, good Lawyers know how to make COPS lie, then get the jury to see this, so guilty get off. (2) cops don't always know the law, so (unrepresented) innocent get convicted. (3) Cops may not know, or have had time to get the needed facts, and again convict the innocent.
So definitely judges are to blame for the problems in court, not just the purgers.
If a cop is caught committing perjury, the judge should be empowered to summarily strip him or her of their badge and gun the moment they get off the witness seat.
I thought that cops (and people in general) were not permitted to carry firearms into a court of law.
When our name is on the back of your car, we're behind you all the way!
So this is a serious question. What's so bad about spamming that everyone hates it?
Isn't this only true if the tape is not introduced in reaction to testimony. IE once the plaintiff and defendant have both entered contradictory statements of the event, then a tape could be introduced to add some credentials to one side. But as standalone evidence (IE in place of testimony) then it is almost never admitted. So in the case of perjury in a civil suit it would makes sense? In his other example where the defendant didn't show, the Judge was absolutely correct to not even consider entering it in evidence.
Technically, yes, the tape could theoretically be introduced suddenly at if it is presented purely as rebuttal to something suddenly asserted by the defense. However in a real civil case all these assertions on both sides would have come out long before any testimony was to take place, since the issue is central to the case.
Comment removed based on user account deletion
While admirable my own limited experience suggests that prosecuting every act of perjury would be impractical. I've sat on two juries at criminal trials, the second of which was actually a perjury trial. In both trials, a plurality of the eye witnesses called had to be, let's say, "mistaken". That means even a simple trial with say 7 to 10 witnesses total would generate 3 or 4 potential perjury trials.
The perjury trial I sat on was in relation to a homicide, and they basically retried the entire murder all over again in order to show how the original statement might have been false and to show how it was materiel to the investigation. It took four days, and they called all the same witnesses and had them restate their testimony. This was complicated by the fact that the perjury trial took place 2 years after the fact and some witnesses had clearly forgotten things, while others where clearly lying to protect the defendant (more perjury). My guess is that the only reason they were going after the guy for perjury was that they weren't able to prosecute him as an accomplice.
So anyway, yeah, I think that like drugs and speed limits, indiscriminate enforcement of perjury laws would cause the legal system to choke to death.
Depends, at my local area, Cops in uniform are allowed to carry in Courthouses even if they are giving testimony.
The article's author talks about hosting providers having "secret agreements" with spammers or other complicity. THIS is the leverage needed to hobble spammers.
Spam is almost *always* a come-on for some fraudulent enterprise (stock schemes, fake/illegal pills, or other outright identity theft or fraud). In order to perpetrate frauds like this on an ongoing basis, you need complicity with: hosting providers, credit card processors, banks, and various other middle men.
What's needed are RICO prosecutions that demonstrate this complicity so that the *entire chain* can be prosecuted as a criminal enterprise. Once a few spammers and their secret partners go down in a RICO prosecution ($250k fines, 20 pound-me-in-the-ass years in federal prison) you can believe that these businesses operating in the shadows and providing legitimate business support for spammers and their clients will seriously second guess their involvement in this and decide that 20 long years in prison and crippling financial penalties and forfeitures just isn't worth it for whatever pocket change they get from some guy who wants to send spam.
Spam just doesn't work as a purely underground phenomenon, it requires complicity with the "legitimate" world in order to process payments, send email and so on. If you cut that air supply off or make it much more expensive, you may make the margin small enough that it stops being viable.
Will it stop everything? Of course not, but it will make what's left far easier to isolate.
I have a friend who I met through a club we were both members of. He isn't a spammer as such, but I think he falls close to this category. He's more of what another friend of my refers to as a crazy-maker. Supposedly it means someone who doesn't really have much perception of reality and what's going on around them, and they'll work really hard to do things their way without realising just how much they're intimidating people around them.
He's not in the aggressive spamming business, but his main business is marketing, including direct marketing, and he contracts to various businesses to organise their direct marketing for them.
Personally he's a really nice guy and you can tell he cares a lot about excessive amounts of voluntary participation and things that have little to do with money, but he sees everything through the eyes of his fairly aggressive marketing tactics. He frequently speaks about this thing called "presence", and no matter what he's doing, which is basically the idea of being seen.
The way he promotes things is always about presence, above everything else. A few years ago he became interested in websites, and started building his own with the goal of experimenting about how to get as many hits as possible. Many of these websites are absolutely hideous to look at. They're difficult to read, massive fonts, badly placed images, extremely long pages with little structure and largely-sized key words splattered in seemingly random places and linking to random things, but it's what he's decided boosts his ranking in the major search engines.
He took over administration of the club website after I'd been managing it for about 7 years. He wouldn't have been my first choice, but I'd been trying to shove it off to someone else for about 4 years and had no offers. (One of the problems in voluntary organisations.) Realistically I was just glad to be able to hand it to someone and I didn't really care any more, so he got it, and I was happy because I finally stopped getting nagged by people wanting me to make changes to website admin stuff.
Almost immediately the club website turned into a messed up mixture of what he considered was needed to get more attention from search engines. Although the website was being hosted by a community service that basically provided a free shell account to community groups on the assumption of people acting well, he uploaded hundreds of megabytes of high resolution photos, essentially abusing the unmetered storage space on the community service.
He didn't get on at all well with the club committee to the point that he was kicked out of the club... which he took offence to and was quick to point to the number of hits and the "presence" he'd built for the website.
I'm no longer involved in the club, but a couple of years later I heard that the community provider ended up paying several hundred dollars for a consultant to analyse some problems they were having, and found that he'd left a process running under the shell account for a very long time (kicked off by a cron job and/or emails arriving or something). It'd left behind about a 70GB log file full of errors, because for some long amount of time, it'd been trying to poll a non-existant server overseas 4 times a second. The process it was some kind of marketing/tracking software he'd installed. I don't have a clue why it needed to talk to a remote server.
The amazing thing is that this guy is a nice guy and he cares a lot about what he's doing on a community level, but he does it all through his own eyes which are different from other people's, and is definitely someone I'd consider to have an extremely casual relationship with objective reality, and I think I've survived him so long because I tend to keep my distance and stay away from what he gets involved in. He doesn't really connect what he's doing with how they n
That is why it is prosecuted only in the most egregious or high profile cases.
I'm too lazy to log in from my iPhone, my sn's TheCastro if people want to comment to me.
I totally agree with your comments about this article, people need to question things more and look into themselves, using the internet (all the information is at your fingertips) is great.
My reply is to your last comment, the author does not offer any information leading to this "traditional cost-benefit analysis" the say isn't worth it. If you actually prosecuted everyone who lied; regardless of them winning or losing the case, extra harshly people would probably stop lying except in the most dire of circumstances: ones where losing is worse than the punishment for lying.
I wish that witnesses on the stand could ask to 'approach the bench' if they wished to. Or, at the very least, ask for a closed courtroom.
They have the right to remain silent and not to offer testimony that will incriminate them.
[...]
Prosecution: Did you have an affair
Defendant: ""
If you say nothing your wife will still suspect (at least) if you request a closed session your wife will still suspect. If you're unlucky, even if you answer "Never, I love my wife", your wife will still suspect.
Federal law states that the rules for recording a conversation across state lines are the stricter of the two states. So being in Arizona does not help if Washington has harsher requirements, and vice versa.
IANAL, this may not represent the state of case law.
Prosecute a bank? Sure, and get arrested yourself for a "terrorist" action in "trying to worsen the economic crisis" or some such.
Maybe a few months ago...
With the "oh, we'll wait and see" on Palin's long-delayed case, but for hacking PRIVATE e-mail we'll get the secret service involved immediately and throw the book at the hacker asap, I'm not too convinced that justice will be served to those seen as "movers and shakers". It will be seen as "bad for the economy" to hold anyone VP or higher level involved in the financial industry personally accountable for anything.
I'd love to see it happen, but good luck.
None of that is the point.
I am attempting to reduce lying on the stand without reducing information there.
The ability to privately request, perhaps via attorney, the right to testify in private if they can give some good explanation for it would help.
Actually, a better place it would help is the police. If suspects could give, for example, an alibi to the police with the assurance that, if it checks out and the case against them is dismissed, the alibi will never be made public, we might have a good deal less lying.
And, incidentally, your idea only works for defendants, not witnesses. A witness who is having an affair might lie about some relevant information to cover up an affair, and witnesses, obviously, can't refuse to testify.
If corporations are people, aren't stockholders guilty of slavery?
If you want to check for the widespread spam policies of ISPs don't bother with all of them. Just check with backbone providers and the contractual obligations their customers have in regards to spam/UCE.
That fact that it is such an obvious racketeering case and we've never seen a RICO prosecution leads me to believe there's just too much money being made by the spammers "air supply" generally above-board business partners.
and witnesses, obviously, can't refuse to testify.
So there is not right to silence? A defendant could be called as a witness?
Witnesses can refuse to testify if their testimony would incriminate them in a crime, and only if it would incriminate them. (Whereas defendants can refuse to testify regardless.)
However, adultery is not a crime, and thus you cannot refuse to testify simply because your testimony includes that. (1) If you refuse, the court will hold you in contempt.
Likewise, the court can simply grant you immunity and compel you to testify even if it will incriminate you. (Although they then can't use it against you.)
1) Although, technically, in many states laws against it, or against sex outside of marriage, are still on the books, and that would make an interesting legal question.
If corporations are people, aren't stockholders guilty of slavery?