Anti-Spam Suits and Booby-Trapped Motions

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.

An example of a "booby-trapped" legal brief with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

illegal to tape a phone conversation!

[Anonymous Coward]

it's illegal to tape a telephone conversation without both parties' consent. so your taped evidence wasn't admissable. the judge may have been flustered for a moment - pondering whether to bring charges against you!

bleah.

They aren't "glued together"

[Mister_IQ]

The pages aren't glued together, there is a thread of paper glued between them to indicate whether the pages have been read or not. The act of opening the motion would break the tiny paper thread.

Re:illegal to tape a phone conversation!

[LMacG]

I take it YANAL.

In the majority of states on the US, only one party needs to consent to taping. Reference [callcorder.com]

Re:illegal to tape a phone conversation!

[Hankenstein]

Ummm wrong. It is illegal to tape a phone conversation where BOTH parties are unaware.

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as "one-party consent" statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)

Re:Official Complaint

[eric76]

There is a difference between "rejected" and "denied".

From the reading of the story, it is difficult to know which is which.

As an attorney explained elsewhere, a motion would be rejected for not complying with court rules. If the motion is denied, that is on the merits.

So if they were, in fact, rejected, then it may not have been necessary to read them because the lack of compliance with court rules could have already been noted.

Legal system is so screwed up anyway

[guruevi]

Our legal system is so bad, it's not even worth going through the trouble, a single person won't make a difference, we have to band together. The problem is once again, money involved. Everybody earns their share by letting cases drag on, meanwhile choking up the legal process for legitimate cases. Now if this person would pay a lawyer, all of a sudden you would see that it goes much better (of course you'll have to know the expense of it). If lawyers would win such a case big time (as in 1000's of dollars), all of a sudden there would be bunches of ambulance-chasers advertising on TV that they will get money for YOU if you receive spam (hey first consultation is free too!)

I'll give you another example: Traffic cops:

Ok, you're speeding or doing something else bad (broken taillight, loud muffler). You get a ticket.
You claim "not guilty" and actually go to court.
-You let a lawyer handle it (I do), it takes at least 2 appearances and you'll get a great discount. You'll also see some discrepancies, the lawyer actually never goes to court, but you'll receive a letter from your lawyer 2 days before the appearance date that he made a good deal (2 points instead of 4).
-You do it yourself (I tried), it takes the first appearance which you'll have to be there and you'll get either the full fine, or some minor discount, depending on the mood of the judge. The eyewitness of the cop that pulled you over apparently has more weight as a witness than 2 persons that were in the car and saw what happened.

Another thing you can confirm with any police officer: He goes to court on his off-time (because they're almost always either in the early morning or late night), gets an hour or more paid overtime (2x or 3x, sometimes up to $100), even if he was there only for 5-15 minutes. The cost of the ticket is somewhere close to $150 in NYS, the judge has to be paid, the cop has to be paid, the court building, the clerk etc. etc.. Actually, the state is LOSING money on your ticket, even if you're guilty as charged.

In the mean time, that officer could be on the streets doing his work or while he pulls you over for some minor traffic infraction (oops, you're going over 10 mph on a highway with a 35mph zone) he could be doing his work. I got pulled over near a school, because the cop thought I might be going too fast (I wasn't). In the mean time school kids (6th-8th grade) were walking by with CIGARETTES, spitting on the pavement right next to my car. I mean, come on, the cop looked at them and just sighed...

I got pulled over in Buffalo, NY, I wasn't doing ANYTHING wrong (just checking if I had been drinking, I hadn't, and then they just kept on looking to find a problem with my paperwork), in the mean time, not even 10 yards away, people were obviously dealing drugs in front of a convenience store. I made a remark on it, because they already kept me busy for 15-20 minutes, they said something like: "well, we do our job the way we see fit, you just sit there and shut up". They drove off, never even checked on the drug dealers.

Re:no

[DragonWriter]

no, judges have a responsibility to read and understand what motions are put in front of them, including reading the entire motion regardless of its percieved worthlessness.

Actually, judges are generally are permitted by law to reject out of hand motions which are filed in forms that don't meet the rather detailed format requirements most courts have, though I think usually they are required to notify the filer of the problem and provide an opportunity to correct the defect. I'm wouldn't be surprised if having pages deliberately glued together is inconsistent with whatever filing requirements Washington Small Claims courts have.

Re:illegal to tape a phone conversation!

[IronyChef]

But Washington (where Haselton lives) is not one of those states. [callcorder.com]

Re:Wrong

[faedle]

Actually, that's not true everywhere.

In Oregon, for example, it is perfectly legal for a party of any telephone conversation to tape the phone call. They do not need permission of the other party. Note that this only would legally cover calls within Oregon..

Re:Wrong

[Animats]

You cannot record anyone without permission unless you have a court order.

No, some states prohibit that, and some don't. [callcorder.com] Federal law does not. For the states that prohibit it, it only applies to calls where both ends are in the state, since across state lines, federal law applies to telecom.

Re:illegal to tape a phone conversation!

[neonfrog]

I take it YANAL either. Neither am I, but at least I actually read the link you sent:

Evidentiary Issues

Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence. First, if made in violation of either federal or state law, the recordings will almost certainly be inadmissible. Second, even if lawfully recorded, the tapes will be exempt from the hearsay rule and will not, in most jurisdictions, be usable for impeachment. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.

actually, I played a disclaimer before taping it

[bennetthaselton]

I didn't get into this level of detail in the article because I already had to trim it so much (yes, what you're looking at is the *trimmed* version :) ). However, I had the spammer call me on a special phone number where the first thing they hear is a recording saying "Thank you for calling blah blah blah company. Due to company policy, calls may be monitored or recorded." Then the caller presses 1. When they press 1, it rings through to my home phone with a special ring. There is no blah blah company, of course; the whole thing is just set up to catch people if I expect them to perjure themselves in court.

The full details are at the link given in the story:
http://www.judgejokes.com/karlie-jorgensen.html [judgejokes.com]

Without that disclaimer, you would have been correct though.

Re:Judges probably don't like it

[DragonWriter]

State judges are elected.

Some are, some aren't (many states have a mix of elected and appointed judges in different courts.) Not sure which applies to Washington small claims judges.

Re:Tilting at Windmills

[ahodgson]

Your ISP is doing better filtering. Spam comprises 80% of all email sent, nowadays.

Reading Briefs

[MEForeman]

Having clerked for the Supreme Court of New York (trial level folks, watch Law & Order), which is above a small claims court, I can tell you that judges don't read briefs. Their law clerks do. On the first and second pages are the summary of the arguments and the facts, you can tell from this is the arguments are new ones (which they are less than 1% of the time) or if the arguments have a real chance (Out of every 100 briefs I read, I would say 85 had a chance). When you have 300 pages to read every day, there is no point in reading an argument you've read before that is a loser, especially when you have bad facts. ALSO, obvious winners are often skimmed (at best) because the loser is obvious.

Just because your brief is not looked at super-duper closely does not mean the judge (or, more accurately, his/her law clerk) does not understand your arguments and facts, and then put it down because there is no point in reading more when you know what to tell the judge.

And trust me, I'm right on this one, every clerk does the same thing. All the arguments are the same, especially in small claims court where the facts, NOT THE LAW, are more important.

It's amazing how law school has jaded me, good lord...

Re:actually, I played a disclaimer before taping i

[bennetthaselton]

The full list of the test cases with the judges' names is at:
http://www.judgejokes.com/booby-trapped-filings.ht ml [judgejokes.com]
Although, the judicial elections are over and most of them don't come up for re-election again until 2006...

Besides, part of my point was that all of the existing safeguards -- elections, appeals, a commission for investigating complaints -- are already there, and weren't enough to prevent this from happening. What would be enough? I don't know. I am moving on to federal court to try my luck there. But I feel bad for all the people who are forced to go to district court, for criminal matters and serious family issues like child custody.

Re:illegal to tape a phone conversation!

[SDF-7]

If you read the summary and follow the link to the Motion to reconsider (http://www.judgejokes.com/motion-to-reconsider.y3 4566.10-6-2003.doc [judgejokes.com]), it directly references the played version of the recording not including the disclaimer made at the beginning of the call that the call would be monitored/recorded [presumably very similar to the stock recording we've all heard on tech support lines]. As such, and assuming we believe the motion to the Judge made by the submitter to be factual, then there's an opt-in agreement by the second party to recording since they were informed that this would take place.

Re:Wow, what a discovery!

[rawg]

"You've discovered that outside of a pretty rabid minority, spam doesn't factor into most people's lives. If they see it, they delete it and move on with their lives."

Tell this to the tech support centers that get calls all day long from angry customers complaining about the amount of spam they receive.

I'm a very small ISP and I get calls twice a week about spam. This is after it's gone through Spamassassin. I have customers getting 200 spam emails a day that make it through Spamassassin. I know it's their fault for the amount of spam they receive, but it becomes my problem with I'm dealing with 20,000 junk mails that my servers have to process every month for 150 people.

Read the court transcript

[Hemogoblin]

In an earlier comment, Mr. Haselton posted a transcript of the hearing here [judgejokes.com]. If you read it, you'll find the story isn't quite as clear cut as he makes it out to be.

Now, I agree that the accused was probably a spammer and should have punished for his crimes, but Mr. Haselton did NOT argue his case very well. I think the dismissal of the claims was more a result of Mr. Haseltons poor presentation than anything else. He was not particularly organized, presented too much irrelevant information and had a poor flow. It is true that the judge interrupted him a number of times, but IMO it was simply to make Mr. Haselton get to the point.

At the beginning of his presentation, Mr. Haselton did not clearly explain the technical details. I'm still not quite sure what bulletproof-hosting is and why it makes the spammer liable for damages. It appears the judge felt the same way. Second, Mr. Haselton's evidence wasn't particularly compelling since he didn't produce the tape, nor did he produce the disclaimer. That might be irrelevant to the case (IANAL) but the judge clearly wanted it.

I don't want to be hard on Mr. Haselton since he's not a lawyer, but it appears that he lost due to a poorly argued case rather than judicial corruption and incompetence. As an aside, this proves why people hire lawyers in the first place; they know how to present information in a logical and clear manner, and know what the judge is looking for.

The Judge was right

[Anonymous Coward]

I've taken the time to read the entire transcript of your hearing with Judge Jorgensen. I am both a lawyer and someone who is closely-connected to the judicial system (and thus, posting as an AC), so I know what I'm talking about.

I don't have the time or energy to go through the transcript and give you a point-by-point defense of the Judge's ruling, or to show you where your case was lacking. I also have no intention for you to take this as legal adivce. But I feel the need to comment on several things that you need to think about if you're going to keep doing this:

1. The Judge rightfully got irritated with you because, like most laypeople, you don't know the difference between fact and law and between testimony and argument. A trial has two phases: presentation of evidence, then argument. During the presentation of evidence phase, the judge doesn't want to hear *why* you think the law applies; she wants to hear facts -- what happened, to whom, when, etc. Presentation of evidence is done on a witness-by-witness basis -- you call your first witness (in your case, it should have been you), and you present all of the evidence that witness has to give. Then you call your next witness, and present all of the information *that* witness has to give, etc. You jumped between questionning Spies, offering your own testimony, and offering argument, the questionning Spies again. That jumbles the presentation of evidence, and annoys judges.

2. Your theory of the case was not well-presented. Again, laypeople often don't have the training to present a legal argument in an easy-to-digest manner. I've always thought that the best way to teach how to do it is to think of the old proofs you had to learn in Geometry -- i.e. these things [sparknotes.com]. You want to prove that Joe Spies sent you an e-mail. To prove that conclusion, you have to break that down into separate pieces- (a) you received an e-mail; (b) the e-mail contained a remove link to FullServices.com; (c) I looked up FullService.com's registration; (d) the registration lists a phone number of XXX-XXX-XXXX; (d) I called that number, and someone answered; (e) I asked that person's name; (f) the person said "Joe Spies"; etc. (Note that each step in the chain refers to something that is proven in the step before it. That's a chain of logic -- it's how things get proved, in geometry, or in court, or anywhere.) Before you ever go into court, outline your case exactly like this, and when it comes time to put on proof or to summarize you proof in a closing argument, work through this outline.

3. Of course, having a great outline doesn't work if you don't understand what it proves. In the chain I mention above, you have not proven that Joe Spies sent you an e-mail. You've proved that you received an e-mail, that a website is mentioned in that e-mail, and that Joe Spies answers the phone at the registered phone number of that website. That's it. Someone might reasonably *infer* from these facts that Joe Spies sent you the e-mail, and a circumstantial inference can be enough to prove a case, but under these facts, the inference isn't very strong. You didn't track headers to show FullServices.com is the sender of the e-mail (and you probably can't -- it probably came from a bot, or broken relay). You assumed that FullServices.com conspired with the sender simply because it is listed in the e-mail, but that assumption isn't warranted. You don't account the possibility that FullServices.com is just an innocent company hired by a spammer to maintain a remove list. The only proof you had that FullServices.com was somehow involved was your phone call, which has its own problems. Without any other proof of FullSerivce.com's involvement in the sending, you didn't prove Spies violated the law.

5. The Judge properly refused your transcript of the call for several reasons. First, I haven't looked up the law in Washington, but if it requires both parties' c

Re:illegal to tape a phone conversation!

[Sabby]

However, if you read the rest of his site, you see that he was tricky about it.

He left a phone number for the spammer to call, when the spammer called they heard a recording saying that their phone call may be recorded. Then he asked the spammer about his rates for spam, in great detail.

When he presented the evidence in court, he explained all of this to the judge so that the judge would understand it. (Originally, the tapes were thrown out due to him not explaining it enough, but he put in the additional details in his future motions.)

The site is interesting to read.

Re:Doing *what* to a *what*?

[GogglesPisano]

I had a co-worker that used to use a similar phrase. As in:

"I'm so p*ssed off I could jack off a bobcat in a phone booth with a hand full of razor blades"

or (another variant):

"I'd rather sandpaper a bobcat's butt in a phone booth than X" (where X is some undesirable task).

He was an ex-Marine from Texas, so take your pick where the line originated.

Re:Job / Hobby / Quest ?

[Kalriath]

Unfortunately, they're silver.

filed copy may not be the one the judge read

[yaddayaddaslashdot]

I haven't ever filed anything in small claims court, so perhaps the rules are different there, but in every other court I've filed something in (I'm a lawyer), you need to submit at least two copies. The original goes in the court file, and the other copy is the "chambers" copy. The chambers copy is routed to the judge, while the original is there for anyone to look at as part of the public record. What happens to the court file copy varies from court to court. Some judges/courts like to have the file copy in front of them when there's a hearing, in which case they might review the original copy (though they probably reviewed the chambers copy before that). In other words, in the ordinary course, sometimes the court file copy will be paged through and sometimes it won't. But that isn't indicative of whether the court read the brief. Like I said, I haven't filed stuff in small claims court (and indeed the procedures are not the same in every state), but in the courts I have been in, this experiment wouldn't prove anything.