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."

Comments

Morton's Fork

[plover]

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.

Re:Morton's Fork

[argent]

Spam isn't a technical problem, it's a social problem. EVERY communication channel that gets created, gets abused by people like this until the law comes down on them to stop it. Whether it's email spam or loudspeaker trucks, it's the same problem.

Re:Morton's Fork

[Hatta]

Revile the legislators who caved to the direct marketing lobby and took away your right to sue those leeches.

Re:Morton's Fork

[whoever57]

I'm not sure who to be cheering for on this one: the barrator or the spammer. Who should we revile more?

I can answer the question on whom we should revile more: the politicians who passed anti-spam laws that effectively protect the spammers.

Re:Morton's Fork

[swillden]

Spam isn't a technical problem, it's a social problem. EVERY communication channel that gets created, gets abused by people like this until the law comes down on them to stop it. Whether it's email spam or loudspeaker trucks, it's the same problem.

The technical part of the problem is that there's no way to enforce a legal solution.

Re:Morton's Fork

[Herby Sagues]

Mr. Spammer, you swine. You vulgar little maggot. You worthless bag of filth. As they say in Texas. I'll bet you couldn't pour piss out of a boot with instructions on the heel. You are a canker. A sore that won't go away. I would rather kiss a lawyer than be seen with you. You're a putrescent mass, a walking vomit. You are a spineless little worm deserving nothing but the profoundest contempt. You are a jerk, a cad, a weasel. Your life is a monument to stupidity. You are a stench, a revulsion, a big suck on a sour lemon. You are a bleating foal, a curdled staggering mutant dwarf smeared richly with the effluvia and offal accompanying your alleged birth into this world. An insensate, blinking calf, meaningful to nobody, abandoned by the puke-drooling, giggling beasts who sired you and then killed themselves in recognition of what they had done. I will never get over the embarrassment of belonging to the same species as you. You are a monster, an ogre, a malformity. I barf at the very thought of you. You have all the appeal of a paper cut. Lepers avoid you. You are vile, worthless, less than nothing. You are a weed, a fungus, the dregs of this earth. And did I mention you smell? You snail-skulled little rabbit. Would that a hawk pick you up, drive its beak into your brain, and upon finding it rancid set you loose to fly briefly before spattering the ocean rocks with the frothy pink shame of your ignoble blood. May you choke on the queasy, convulsing nausea of your own trite, foolish beliefs. You are weary, stale, flat and unprofitable. You are grimy, squalid, nasty and profane. You are foul and disgusting. You're a fool, an ignoramus. Monkeys look down on you. Even sheep won't have sex with you. You are unreservedly pathetic, starved for attention, and lost in a land that reality forgot. And what meaning do you expect your delusionally self-important statements of unknowing, inexperienced opinion to have with us? What fantasy do you hold that you would believe that your tiny-fisted tantrums would have more weight than that of a leprous desert rat, spinning rabidly in a circle, waiting for the bite of the snake? You are a waste of flesh. You have no rhythm. You are ridiculous and obnoxious. You are the moral equivalent of a leech. You are a living emptiness, a meaningless void. You are sour and senile. You are a disease, you puerile one-handed slack-jawed drooling meatslapper. On a good day you're a half-wit. You remind me of drool. You are deficient in all that lends character. You have the personality of wallpaper. You are dank and filthy. You are asinine and benighted. You are the source of all unpleasantness. You spread misery and sorrow wherever you go. You smarmy lagerlout git. You bloody woofter sod. Bugger off, pillock. You grotty wanking oik artless base-court apple-john. You clouted boggish foot-licking twit. You dankish clack-dish plonker. You gormless crook-pated tosser. You churlish boil-brained clotpole ponce. You cockered bum-bailey poofter. You craven dewberry pisshead cockup pratting naff. You gob-kissing gleeking flap-mouthed coxcomb. You dread-bolted fobbing beef-witted clapper-clawed flirt-gill. You are a fiend and a coward, and you have bad breath. You are degenerate, noxious and depraved. I feel debased just for knowing you exist. I despise everything about you, and I wish you would go away. I cannot believe how incredibly stupid you are. I mean rock-hard stupid. Dehydrated-rock-hard stupid. Stupid so stupid that it goes way beyond the stupid we know into a whole different dimension of stupid. You are trans-stupid stupid. Meta-stupid. Stupid collapsed on itself so far that even the neutrons have collapsed. Stupid gotten so dense that no intellect can escape. Singularity stupid. Blazing hot mid-day sun on Mercury stupid. You emit more stupid in one second than our entire galaxy emits in a year. Quasar stupid. Your writing has to be a troll. Nothing in our universe can really be this stupid. Perhaps this is some primordial fragment from the original big bang of stupid. Some pure essence of a stu

Re:Morton's Fork

[m.ducharme]

How many lawyers do you personally know? I'm curious. I am currently working as a summer student at a law firm, and before that I worked as a clerk at an Insurance Defence firm, and when I go to school in the fall, all my teachers will be lawyers. So I'd say, guessing roughly, that I've met and talked to maybe 30-50 real, live, practicing or teaching lawyers (some practice as well as teach), and I have to tell you, out of all of them, there's only one that I suspect is possibly a sociopath. The rest are hard-working, honest people with varying degrees of ethical awareness, mostly fairly developed senses of ethical awareness. They take legal aid cases because their clients can't afford representation, or they mount Charter challenges to challenge overzealous cops or bad laws, they draw up wills, guide clients through divorces, and do the paperwork for your house sale. They teach business law, commercial law, and yes, ethics. Only a small portion do what you think of as "unethical" lawyering, and most of those know that there is ethical value in the work they do, and they care about that value, a great deal.

I think you don't understand the ethics of lawyering very well. The lawyers who chase ambulances are also the lawyers who keep corporations from completely neglecting quality control, and who keep insurance companies paying out settlements. Also, you mentioned criminal lawyers who defend clients that they know are guilty. You look at this and you see a lawyer who's protecting a criminal from being punished, and you think the lawyer is a slimeball. But that lawyer understands that when you have an adversarial system, every single person accused of a crime deserves a vigorous defence. Good criminal lawyers keep prosecutors honest, and they protect people from the much greater power of the state. If someone is guilty of a crime, but they get off because the prosecutor didn't build a good case, or because the cops roughed the guy up too much down at the station, then next time, the cops will know not to beat the shit out of prisoners, and prosecutors will know to do a good job instead of a sloppy mess of a prosecution.

As for the DA who prosecutes showy cases to help him at election time: well I'm a Canadian and I can't get over that you people in the US elect your prosecutors (and judges, for that matter). That seems wrong to me. You elect your government officials, as you should, a democracy is the worst form of government except for all the other forms; but there's room in the system for unelected professionals whose job is to protect people from the tyrrany of the majority, and lawyers, prosecutors and judges can fill that role well. But whatever, that's the system you have chosen for yourselves, and it works best when "slimeball" criminal attorneys can go all-out for their clients. It doesn't look pretty, but for the most part it works, and the people who make up the system know that what looks unethical to most people may be necessary to preserve the best parts of the system.

Re:Morton's Fork

[chaboud]

We could have a legal system not so mired in procedure that it makes it next to impossible for the layman to defend himself, and this system has been perpetually perverted by those blurring the line between zealous adversarial representation and inhuman chicanery.

At this point, yes, we need lawyers, but, in my experience, I haven't found 90% of lawyers to be either good or evil. Maybe 10% are strongly either way. The rest are just like us, lazy, tired, mildly manipulative, and so busy doing the job that they've lost sight of any greater meaning of the work. The next time your doctor gives you Flonase instead of a chest x-ray because they'd rather turf you than fight with your HMO? Yeah.. same thing.

Re:Morton's Fork

[argent]

The technical part of the problem is that there's no way to enforce a legal solution.

Follow the lead of the TCPA and allow EVERYONE to take spammers to court, instead of this corrupt law that only permits ISPs to do so, and spam would stop in short order.

Re:Morton's Fork

[Brian Gordon]

Spam doesn't break the system, it shows that the system is already broken. Building a robust system that actually works is better than building a broken system, hoping people don't exploit it, and then prosecuting people who inevitably do.

In computers, things that you aren't allowed to do you shouldn't be able to do. Processes shouldn't read each others' memory, so the operating system doesn't let them. Bob shouldn't read Alice's private files, so he can't. This is common sense design. We don't give the root password to some homeless guy, trusting it will be safe because he knows he'll be hung for high treason if he gives it away. OK it'll probably stay secret, but the whole affair was completely unnecessary as he didn't need the password. I call this a new design principle: Don't Randomly Give Away Your Passwords To Strangers That Are Good At Keeping Secrets.

It's the system's responsibility to maintain order. "Spammers shouldn't send mass mail, so..." should end in "...they can't." just like the other examples, and unlike your version which is "Spammers shouldn't send mass mail, so..." "...we prosecute them".

So good night argent (18001). Go back to your cowering behind your OS's memory protection, which prevents more useful inter-process communication than overflows.

Re:Morton's Fork

[Supurcell]

It's funny for those of us who've never seen it before...

For everyone else, it's just spam.

Re:Morton's Fork

[Anne Thwacks]

And when all of the botnet operators are in Eastern Europe and China, then what?

Tell the credit card companies (American, all of them) that if anyone pays for an item advertised by spam using thier card, they are toast.

The credit card companies totally control what their merchants sell, how they sell it, etc. and could stop spam on 30 seconds if the US authorities went after them. Unfortunately they probably own the US government.

In simple terms spam is there, because the US gvernment wont stop it

Re:Morton's Fork

[TheRaven64]

Well, at least they were honest this time. It's not like naming a law that violates the spirit that created the USA something like USA PATRIOT, or hid it behind a buzzword-filled title like the Digital Millennium Copyright Act. The CAN SPAM act does exactly what the name implies; it means that you can spam as much as you like.

He should have set up a company to sue for him

[whoever57]

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.

Re:He should have set up a company to sue for him

[digitalunity]

Stone v. Frederick Hobby Associates II, LLC, 2001 Conn. Super. LEXIS 1853,
Superior Court, judicial district of Stamford-Norwalk, at Stamford, Docket No.
CV000181620S (July 10, 2001) (Mintz, J.),

Using an LLC to shield yourself from fraud doesn't necessarily work. As always, YMMV, IANAL, subject to jurisdiction, etc.

Because you don't like it doesn't make it illegal

[lalena]

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.

James Gordon?

[Dusty101]

He'll be fine. Bruce Wayne will bail him out.

The appeals court made a really biased decision.

[www.sorehands.com]

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.

People do this for Faxes too

[erroneus]

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?

Re:People do this for Faxes too

[flonker]

I wonder if a "real" ISP would be able to partner with a spam-fighter to allow them to fight the good fight. I'm sure within half a dozen phone calls, you'd fine one that was willing to lend you their name. I'd suggest looking at the list of registered ISPs at the Copyright office - http://www.copyright.gov/onlinesp/list/index.html as they're likely to have all of the other bases covered already.

Wait, why 'haha'?

[improfane]

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!

Re:Wait, why 'haha'?

[jjohnson]

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. There's two ./ hot buttons here: spam and abusing the courts. It's a tale of a bunch of shitty people being shitty each other, and 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.

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). It's 'haha' because someone who thought he was gaming the system got busted.

Re:Wait, why 'haha'?

[pclminion]

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.

Why do I give a shit if the man profits from it? Good for him. You sound like one of those guys on the freeway who lets nobody merge just because you don't want anybody to get ahead of you. I was not aware that it was a race or competition.

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)

How is this tying up the court system? I suppose you'd prefer if everybody sued individually, multiplying the case load by thousands of times? I really am not following this logic.

Re:Because you don't like it doesn't make it illeg

[techno-vampire]

The spammers are violating the law by spamming. Is protecting your right to not receive spam abusing the law?

It can be. Going against people with no regard for the law doesn't give you permission to ignore or misuse the law yourself.

Why not the same for the MAFIAA?

[Dr_Art]

Why don't the MPAA/RIAA (MAFIAA) get the same treatment as this lawyer? Of course, this is a rhetorical question...

Re:The appeals court made a really biased decision

[lalena]

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.

Standing

[Estanislao Mart�nez]

The spammers are violating the law by spamming.

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.

Re:Because you don't like it doesn't make it illeg

[Anonymous Coward]

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.

Re:You can lead a horse to water...

[Khashishi]

The jackass had numerous chances to settle and he just wouldn't do it.

Maybe he has something called PRINCIPLES.

Re:abuse of the obvious

[shentino]

Imposing a cost on sending of email is not going to work.

You forget that many times spammers are criminals using botnets composed of hijacked machines, whose innocent owners would wind up paying the price while the spammer cheerfully pays his chump change to the botnet operator.

My favorite solution consists of the following:

1. Widespread adoption of SPF/DomainKeys to
2. Allow anyone to sue a spammer and not just an ISP
3. Make it illegal for credit card companies to process payments for spammed products.

On the whole, politics will probably make 3 the steepest uphill battle. I'm sure the credit card companies are well represented at DC.