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Anti-Spam Lawyer Loses Appeal, and His Possessions
Techdirt is reporting that one particularly rabid anti-spam fighter has not only lost his case, but most of his worldly possessions as well. James Gordon tried to set himself up as an ISP to get around the conventions of the CAN SPAM act in order to set up a litigation house designed to sue companies that spam. Unfortunately a judge did not take kindly to this trick and ordered him to pay $110,000 to the firm he was suing, a decision that was not only upheld on appeal but accompanied by some very unkind words trying to shut down litigation mills like his. "But, perhaps even more fascinating is that the guy, James Gordon, didn't just lose the lawsuit, it appears he lost most of his possessions as well. Remember that ruling telling him to pay the $110k to Virtumundo? He refused. The company sent the debt to a collections agency, but told Gordon they'd call off the collections agency if he dropped the appeal. Gordon didn't."
I'm not sure who to be cheering for on this one: the barrator or the spammer. Who should we revile more? Dante reserved the fifth pouch of the Eighth Circle of Hell for barrators, but he says nothing at all about spammers.
John
If he had some kind of limited-liability entity that sued, he might have been able to protect his own possessions, just like the patent trolls do by setting up a subsidiary for each group of patents.
The real "Libtards" are the Libertarians!
the appeals court came down even harder on the guy for clearly abusing the law, pointing out that he was clearly a professional litigant, and not someone running a real ISP
The spammers are violating the law by spamming. Is protecting your right to not receive spam abusing the law? Is there something illegal about being a professional litigant? I thought we called them lawyers.
idiot thinks they can apply "well technically" tricks in the legal system and gets smacked down by judges.
Who would have thunk it?
He'll be fine. Bruce Wayne will bail him out.
Reading the decision, it is clear that the appeals court was biased.
On the issue of the Washington law preemption, the Court referred to the complaint regarding subject lines and from lines as being "vanity domain names" that were not deceptive. The use of From lines of "Free IPOD" or "Free 50 inch Plasma TV" is deceptive. Just because, after opening the e-mail, and doing whois lookups, that you can determine that it is from Virtumundo, does not mean that the from is deceptive.
The appeals court refused to rule who is an IAS, but said that a well known IAS (ie. Hotmail) does not have to show harm from spam because it is obvious, but a little guy does. The Court went further and said that harm under can-spam can't be the ordinary business expense of carrying e-mail, but one can argue that any mail provider must filter spam and carry spam, therefore there can never be harm from spam, illegal or legal. Any good IAS must provide extra capacity so that if there is spam, they will not crash.
Do you feel sorry for the professional spammers that get harmed by the professional anti-spam litigation service? Of course, if Virtumundo itself in the from line, their spam would have been deleted by most filters.
Fight Spammers!
Who needs enemies?
The anti-spam-fax law allows for individuals to sue for damages and so many people have set up fax lines and started collecting faxes and collecting money. I don't know if that is still going on or not, but I heard some people made it a full-time living.
The CAN SPAM act is another problem in that individuals are not allowed to sue. The ISPs are the ones who are eligible for that. This part of the law needs to change. While allowing individuals to sue might be a bit too much for some litigation-happy individuals to resist, I think it might be fair enough to allow domain holders and mail hosts to sue under the CAN SPAM act. I say this because I own three domains and would be happy to file a legal action or two except for the fact that the amount of spam I receive is pretty low at the moment... and by low, I mean one or two every two or three days. (Thank you greylisting! Say that "it won't work" all you like, but the results speak differently.)
Should setting up shop in order to take advantage of a law against spamming be allowed? HELL YES it should! The opposite is certainly true and acceptable -- for business to have laws written to their advantage. Is the a provision in the CAN SPAM act that says you can't do this? Is there any law, federal or state, that says you can't do this? The bottom line is that someone set up a "honey net" for profit via the judicial system. Perhaps its the perceived abuse of the judicial system that is the issue?
There are too many powerful companies involved in spamming (aka online marketing.) There was no way a judge was going to make it easier on the average joe. Instead we all have to pay for people wasting bandwidth with their crappy advertising and making us sit there deleting emails every day.
Spammers vs Litigators = Alien vs Predator
Who ever wins, we lose!
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
This poor fella made his living milking the legal system via trickery. Unfortunately for him, collections agencies are more more cut and dry and humorless.
0 = 1 + e^(Alt something)
Wait, why is this tagged 'haha'?
If I understood the summary properly, an anti-spammer's life is being ruined by a spammer?
What the hell? Surely this is a bad thing! Coincidentally, virtumondo is a very nasty piece of Windows adware/spyware too!
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Having lost nearly all his worldly possessions James Gordon, rabid anti-spam fighter, managed to keep his prized can-opener for the cans of spam he will be dining on... nom nom non
Opportunistic lawyer or spam company? Wait... I'm having an idea! Let's lock them in a room with some bricks and declare the one who makes it out the winner! No matter who loses, we're sure to win!
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Can you get me the e-mail of that judge?
It can be. Going against people with no regard for the law doesn't give you permission to ignore or misuse the law yourself.
Good, inexpensive web hosting
How are they biased? You do not seem to have proven any specific bias.
The Court may have come to what you consider an incorrect decision; that is not bias. The Court may have come to a decision found ultimately to be incorrect on appeal: that is not bias, either.
Bias requires a specific partiality to one party or another, and you have not even mentioned any sort of bias here.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
Reading the decision, it is clear that the appeals court was biased.
Uuum, that would be a physically inevitable fact, because it's made of humans, living in a reality in which everything (even time) is relative, with senses that filter everything a thousand times, and a brain that processes things based on past experiences.
What you meant, is that they did not have a bias that was compatible to yours.
I happen to myself have a bias that is (in this things) compatible to yours, so I am able to agree on your actual criticism.
But I hope you can now make better statements about these things. :)
Any sufficiently advanced intelligence is indistinguishable from stupidity.
Why don't the MPAA/RIAA (MAFIAA) get the same treatment as this lawyer? Of course, this is a rhetorical question...
James Gordon is not a lawyer.
This makes no sense.
Cops do *exactly* that all the time - setting-up nonexistent businesses in order to catch criminals. They do it with prostitution rings to catch johns, fake child pron chats to catch sex offenders, pretend drug deals to catch users, and so on. This judgment means one of two things:
- Lawyers can not entrap people, but cops can, even if their actions are in violation of the law.
-or-
- Cops are forbidden from setting-up a fake ISP to "sting" spammers. Won't that make enforcement of CANSPAM more difficult?
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
1. Send spam
2. ???
3. Profit!
Now we know what goes in the 2nd point
Entrapment is in the eye of the beholder, and while a police officer who has gotten proper warrants, or who is working on reasonable actionable knowledge will get a very different response from a judge than a private citizen who is just laying traps.
Of course, there's the question of the spirit of the law. If you really believe that this guy was setting up the "booby trap" ISP in order to help end the scourge of spam, then the outcome seems harsh. However, if you deem--as the judge apparently did--that he's just in it to make profit and that the people that he entrapped were being sucked into arbitrary litigation, then the outcome will seem quite appropriate.
The CB App. What's your 20?
14 years ago I purchased a .com for my last name. I was able to get myFirstName@myLastName.com as my email address. How cool is that. Then the spam started (before good filtering). I was getting 1-2 GB of spam a day. My email file (BSD Unix) was open for write 24/7. I could never connect with my email client to download any emails. I'm not even sure if good filtering would have done any good. My hosting company couldn't figure out how to close the email account without closing the my user account (same name) that ran the web site. I basically had to telnet in and VI the file several times a week to delete everything to keep under my account's disk space quota. Also realize that domains still cost $70/year and hosting wasn't cheap back then either.
Spam can really cost someone money even if they aren't an ISP. I eventually had to change hosting companies just to kill that email address. To this day I can't use that address. Even with modern email filters, enough crap would get through to make it not worth using. I'm now using a gmail account.
Thank you for explaining that. I have mod points but cannot mod you up obviously. Your sig is so true, too.
98% of lawyers make the other 2% look bad?
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For the court to be able to act on this assumption, it needs to make a finding of fact to that effect. Before such a finding of fact can be made, other aspects of the complaint must be evaluated. For example, the plaintiff needs to actually be entitled to pursue the complaint they are making.
So basically, in this case, the law says that to pursue a case against a spammer, the plaintiff must be an ISP. Before the court can decide whether the party being accused is actually spamming, it must determine whether the plaintiff is an ISP. The plaintiff failed that requirement, according to the court, case closed.
This may sound annoying to you in this one case, but really, this needs to be the case, in order for the legal system to throw out bad cases quickly. Read up on standing.
Are you adequate?
Of course, there's the question of the spirit of the law. If you really believe that this guy was setting up the "booby trap" ISP in order to help end the scourge of spam, then the outcome seems harsh. However, if you deem--as the judge apparently did--that he's just in it to make profit and that the people that he entrapped were being sucked into arbitrary litigation, then the outcome will seem quite appropriate.
I'm sorry, but it's exactly the same. If a lawyer can figure out how to use the courts to end the scourge of spam, and profits greatly in the process (by taking the money of the spammers), then I'm all for it.
This would be like a lawyer somehow figuring out how to nab child molesters, and in the process take possession of all their assets and bank accounts. The lawyer might have money as his motive, but if he's getting child molesters off the streets in the process, then that's OK. As long as he doesn't wrongly finger someone who's not really a molester, I don't see the problem.
Lawyers have bills to pay too, and to expect them to do useful work for free, and only get paid when doing scummy work which hurts society overall is ridiculous. I think this particular lawyer had the right idea: use the law to do something good for society (shut down spammers) and profit in the process.
No. A litigant is (in the context used here) a party to a lawsuit, not the attorney representing them.
For which waste would you rather pay: wasted bandwidth from spam, or wasted court time from a professional litigant who sees anti-spam laws as a get-right-quick scheme?
I suspect that the wasted bandwidth is less noticeable in daily life.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
Three times he was offered his possessions back but he said no. He sounds very stubborn. It sounds like they didn't really want to completely screw him over, they were not vengeful.
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Despite the name, entrapment doesn't have to do with being tricked, it has to do with being forced to do something you wouldn't otherwise have done. It's not "I wouldn't have done it if I'd known it was a trap" but "I wouldn't have done it if they didn't have a gun to my head".
One difference that I could see with a cop catching a spammer this way is that the money, if any, wouldn't be going into somebody's pocket.
But let's be honest for a second...policeman routinely act as if they are above the law. People are arrested around the country every day for asking for a badge number or going down to the station and asking for a complaint form. Don't believe me? Think your town is different? Go try it and see.
Sure, you'll get your day in court, but only when a prosecutor's been lined up and a bunch of one-size-fits-all charges have been filed against them. Resisting, interfering, failure to identify, etc.
I empathize with the pain you describe, but place the blame where due - on the stupidity of those that actually respond to the spam, or the shady fly-by-night viagra and penis pump outfits, or botnet operators. (there will always be idiots in legit companies who are just trying to make it, and don't follow double opt-in practices, and the CAN-SPAM law is in my opinion fatally flawed primarily through that omission.
Sounds like he was saying that they were biased in favor of fucking up the ruling.
but you can't make him piss. The jackass had numerous chances to settle and he just wouldn't do it. Whether out of spite or principal I dunno but he's without his stuff. Bottom line: Wadda maroon.
"If you want to know what happens to you when you die, go look at some dead stuff."
I hate to see a spammer screwing up a spam-fighter's life - even if whether the spam fighting is for personal gain.
I'd say, set up a fund to pay this $110K. Who's in?
Because, like a patent troll, Gordon wasn't trying to eliminate spam, he was trying to profit off laws against spam that might allow him to sue--a professional litigant.
"If it's worth doing, it's worth doing at a profit."
Why shouldn't somebody doing a public service get rewarded for it? ... we're the one's footing the bill for the judge who has to oversee it all, and the courtroom and clerks they're using.
Actually, the payer of the "court costs" is footing the bill. That's what court costs are about.
Not many ./ers are capable of understanding that sometimes bad people (Gordon) do good things (fight spam) for the wrong reasons (personal profit) at a cost to us all (tying up the court system).
That's what the court system is FOR: Penalizing the miscreants for their misbehavior in order to deter it and making them pay for their violations of law and/or harm to others. If it's not doing that why bother to have it?
"Doing the right thing for the wrong reasons" is a bogus concept.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
According to TFA, the spammer offered three times (at judgment, at collection, and after seizure) to drop the judgment or return the possessions if the anti-spammer would drop his appeal.
If I understand the law correctly, by doing so the spammer committed extortion.
IANAL. Could somebody who IAL comment please?
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
A violent miscarriage of justice and an assault on everyone that uses email.
Which reminds me, anyone know the judges email address? I'm guessing he's a dinosaur that cant use email though - profit motive or no, I have a hard time believing anyone that actually uses it would make such an idiotic decision.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
Do you honestly think that's it's the legitimate companies that're the problem?
Yes. My perspective is not the 95% of spam that SpamAssassin identifies (and is unseen except for the "edge" cases). The remaining 5% is still 80-90% of our email. Most of these are from seemingly identifiable but untrusted sources (meaning, I would generally not bother to ask them to stop spamming us - with some exceptions). You don't ask an untrusted source to stop spamming you because that only confirms you read their spam.
In terms of setting up a network of trust, CAN-SPAM is an abject failure and it prevents going after the identifiable bad actors and enablers (like linked-in - how do I tell them not to send any more email to our business domain?). Half the e-commerce sites market despite a checkbox preference selected to avoid such.
So the problem with CAN-SPAM is that the people you may want to hear from regarding purchases in progress - but not further and endless marketing materials - are totally immune from prosecution. As a result, I often do not provide an email address. NOBODY verifies it so they get either my throwaway address or something bogus using their own domain, like, privacy@slashdot.org.
We are hurt by not having good ground rules to play by among trusted partners. The 50-different state laws approach was thus preferable. There was a risk to SPAM. Now, there is almost none if you pretend to follow the law.
Even if you setup gmail for your domain and pointed the MX record directly to google's servers?
09F91102 no, 455FE104 nope, F190A1E8 uh-uh, 7A5F8A09 that's not it, C87294CE no. Ah! 452F6E403CDF10714E41DFAA257D313F.
At one point it was not illegal to send spam to your fax machine.
Litigation just isn't going to work--politicians are too weakminded to actually write laws that will stop these social parasites, even if we could reliably identify spammers. Vigilante justice is a shame, but it's not like the government really has any moral high ground anymore.
"The biggest problem with communication is the illusion that it has taken place."
I use a hosted Exchange e-mail provider who uses Postini to filter spam and very little spam gets through. I definitely recommend using a service that uses Postini. I use ExchangeMyMail but I suspect that there are other good ones out there. I went with this company about three years ago because they were one of the few that would sell individual hosted Exchange e-mail accounts. It's definitely been worth the $10/month for a hosted Exchange account with Postini filtering.
Sure, spam is 97% of email, but email's a small fraction of the bits on the Internet, most of which is the web. It doesn't consume anywhere near the resources of Youtube.
If you're in the mail-handling business, it's one of your largest problems, along with storage, reliability, etc. and burns most of your internet bits, but if you're in the general ISP bits, the spam's still not much of your bandwidth compared to the regular web traffic.
What spam really consumes is the attention span of its recipients, and therefore the resources and attention of mail handling providers who want to keep their users from getting spammed. But it's the attention that costs the money.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
My hosting company couldn't figure out how to close the email account without closing the my user account (same name)
The magic incantation to tech support is "Alias it to /dev/null". If that hint doesn't turn the light on, you need a new hosting company.
The fly in the ointment is that sometimes the obvious won't peacefully coexist.
Arrow's impossibility theorem
With email, we want some semblance of anonymity, the ability to cold-call (write to someone you've never written to before, who hasn't written to you, either), yet no ability to churn poo in mass quantities.
This is surprisingly difficult to engineer. With voting systems, first past the post is known to have more flaws than average, yet we persist with it on the grounds, I suppose, that people deserve the fruits of their inability to emotionally comprehend a system that works.
Plurality voting system
For simplicity, every alternative system is lumped under the heading "the Italian model". This scares most people more than the mafia.
I was explaining to my sweetie the other day that math is all about spending hours to crack tiny grains of rice. Many of the people who struggle with math get caught up in the manipulations. The big ideas are tiny: positional number system, the digit zero, and challenge-response proof structure (aka calculus).
Let me explain that last one. Continuity was a tough nut to crack. All that infinity, how do you stop? It turns out, you don't actually show that the slope equals a value (that would be stopping, and stopping is verboten), you instead show that error bound can be made arbitrarily small (for any epsilon challenge, a delta response exists). It's a small idea, but essential, and rest of calculus follows directly.
From Arabic numerals
Fibonacci, a mathematician born in the Republic of Pisa who had studied in Bejaia (Bougie), Algeria, promoted the Indian numeral system in Europe with his book Liber Abaci, which was written in 1202
This late date never fails to stun me. So much for the obvious being obvious.
My own proposal, which I contemplated in idle moments some years back but never fully fleshed out, is that we add computational cost to the email syn packet (aka the "cold call"). email messages part of a back and forth exchange could linked cryptographically by any of the methods that prevent hostile packet insertion in e.g. ssh sessions. The details are difficult and exceed my attention span, but it has obviously been done.
The receiving mail host could inspect the incoming message, determine that the packet is a syn packet (not linked within an established exchange) and then decide to impose a computational cost on the sending machine: please factor this product of two large primes, then I will trust you enough to relay this message.
The essential feature is that this functions as challenge response: the imposed cost (product length) can simply scale as a function of how bad the spam problem becomes. If the amortized computational cost imposed exceeds the expected return, the economic incentive to push spam will vanish. It's far easier for the receiving host to generate the prime product than the sending machine to perform the factorization.
There are other asymmetrical math problems if this has some defect. It could equally be solving SETI frames or protein folding, if those have no fatal flaws. (A determination which is best left to specialists.) The size of the prime product challenge could rise and fall in a manner similar to TCP/IP congestion control: if more spam gets through, cost escalates, until the spamholes declare a loss and bugger off again.
The game theoretic proposition from the spammers perspective is this: the receiving hosts can band together to make pushing spam arbitrarily expensive.
Some legit mail (cold call subset) might entail a mail host devoting hours to a factorization challenge. Ideally this computation would be delegated back to the email origin. I'd happily let my system grind for day to authenticate one outb
The spam situation has gravitated to a balancing point. It is no more than a trifling problem for me, the user (in my Yahoo email accounts maybe 2 or 3 spam messages per day get past the filters and reach my Inbox; in my Gmail accounts even fewer), the spam mailers get paid for their "services", I suppose, and the only ones getting the shaft are those who elect to advertise in this manner -- I should like to think they are wasting a substantial part of what they pay the spammers. Or so it ought to be -- WHO, for the love of Intel, still clicks on spam ads??
Even so, I hate to see the Courts going overboard. Mr. Gordon may have misused the law, but a $110k fine seems grossly excessive -- and OUT of balance.
I blame the credit card companies for knowingly benefitting from spam by processing payments.
Of course the the 'CAN SPAM act' act was never about canning spam, but legalising spam, providing safe harbor for spam and preventing end users from suing ISPs and mass marketeers. The only part of the CAN SPAM act that actually referred to canning SPAM was in the title.
Hotmail puts squeeze on spam
the federal government could set up a "safe harbor" program
What if ... "a lawyer can figure out how to use the courts to end the scourge of , and profits greatly in the process (by taking the money of the )" would you still be "all for it"?
After all, "The lawyer might have money as his motive, but if he's getting off the streets in the process, then that's OK. As long as he doesn't wrongly finger someone who's not really a , I don't see the problem." -- RIGHT?
It's pretty ironic that an anti-spam advocate was trying to shut them down by basically spamming the legal system... so in a way, his anti-spam crusade did shut down one major spammer, himself. Oh poetic justice, you so crazy!
Under federal law, most of your household possessions are exempt from execution. In other words, you cannot "lose most of your worldly possessions" as the article states.
The whole story is based on a third-hand account of someone who obviously does not know what they are talking about.
Further, there were no "unkind words" by the judge. The court used the statutory language in awarding attorney's fees to the defendants. This would be a run of the mill case if it did not involve the novel issue of spam.
The judge clicked the opt-out link, but the spammer ignored it.
This would be like a lawyer somehow figuring out how to nab child molesters, and in the process take possession of all their assets and bank accounts. The lawyer might have money as his motive, but if he's getting child molesters off the streets in the process, then that's OK. As long as he doesn't wrongly finger someone who's not really a molester, I don't see the problem.
All he would have to do is convince a significant majority of them that he had a legal method to protect them (for a hefty sum), file a lawsuit, and enter his client list into evidence.
Just think, if this trial were televised Judge Milian could come up with something clever and folksy to say in Spanish.
I know I've hired several lawyers for different services over the years, as have a couple of my best friends. I've also done a considerable amount of computer work in law offices, so observed what was going on around me and the comments different attorneys made during the work-day.
That might not be the same as going to school with entire classes full of them or working in the profession, but I think I have some grasp of who's out there in the field.
I agree with most of what you said, but I also think you're downplaying or neglecting the fact that the lawyers often have a symbiotic relationship with the judges. You claim the lawyers protect us from the "much greater power of the state", and one would like to think/hope that's so. But I've seen several situations where it was pretty clear the lawyers had little interest in protecting their client from the state's power. They simply wanted to go through the motions without "rocking the boat" too much with their connections, and collect their pay. One client (a friend of mine) was advised (poorly) to just plead guilty so "lesser charges" could be negotiated, and he wound up with his life permanently hobbled, despite realizing later that he had MANY possible avenues to get out from under the original charges filed against him that his lawyer didn't make any effort to pursue.
(Why do I think this had anything to do with a lawyer/judge "relationship"? It was a case involving claimed sex with a minor, and it was too much of a political "hot button" issue. The judge didn't want to look like he was "soft" on this type of crime, and the defense lawyer would rather stay in favor with the judge for potential use in future cases. His client was an easy "sacrifice" to the system and he got paid tens of thousands to throw him to the wolves, anyway.)
Be careful what you wish for.
Just because spam is furtive, underhanded, ugly and distasteful, who will you appoint to be the decider of spam. Look at it this way: Who would George Bush have appointed to decide what emails are forbidden and what are not.
I see ads for something called "male enhancement" now on TV. Should we stop that? My post office mailbox fills with all sorts of crap even though that's expensive to print and send. Should we create a law to decide what people can send through the post office?
What of the high incidence of fraud? That's a tough one. Do you presume that all spam is criminal by the way it looks? Dangerous.
..you do know you can redirect your email to your google account (or just change the MX records so that google handles email for that domain), right?
Look into google apps for domains. Google hosts your email, so you get all their (really good) spam filtering. You get up to 100 addresses at your domain, too, that you get to choose.
For free.
[conservotard]ZOMG, he's advoca... advic... advo... he's FOR TEH WUN WURLD GUVMENT![/conservotard]
It has everything to do with being tricked. Entrapment is a defense against criminal charges where the defendant claims that he wouldn't have dome whatever it is he's charged with if the police hadn't talked him into it. Personally, I've always thought that Abscam was blatant entrapment and that the federal agents involved were the ones who deserved to go to prison.
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that, for their financial benefit, perpetuate a system in which only the affluent can afford justice.
while charging hundreds of dollars per hour to do so.
I think that attorney-client privilege would prevent this. Not only would he be disbarred, but I believe that his clients would probably not have much difficulty getting anything they divulged to him stricken from the record, including their existence on the client list.
The CB App. What's your 20?