Anti-Spam Suits and Booby-Trapped Motions 397
 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:
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.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.
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.
Judges probably don't like it (Score:2, Interesting)
Re:Judges probably don't like it (Score:5, Interesting)
Then again, this is Small Claims court. I suspect most judges in said court would prefer to be in a higher court, and probably think of Small Claims as marking time. Also, since suing a spammer deals with the Internet, and the Internet is a global resource, perhaps your typical Small Claims judge feels that it's way outside the bounds of their court, as the amount you're asking for is not terribly high and is probably not going to hurt most spammers significantly.
The only way to get at a spammer in a meaningful fashion is to find others and sue as a group in civil court, IMHO.
Tilting at Windmills (Score:5, Interesting)
I smell a conspiracy. (Score:2, Interesting)
The older I get (Score:5, Interesting)
We pretend to have a democratic system where the little guy has equal footing but in reality it is just propaganda to keep us docile. The entire system is basically set up to keep us working and consuming as slaves and to not get mad and spill over into a revolution.
It is really about naked power with random assertions of right and wrong used as cover for the attacks. That's why some times a charge will stick (it has a lot of power behind it) and other times, the person just gets away with doing the same thing (they have more power).
However, I would say that it has gotten worse (more obvious) over the last 20 years.
NSFW article? (Score:3, Interesting)
Thanks, Slashdot. Now my employer probably thinks I'm a racist pervert.
Perjury (Score:5, Interesting)
Re:I don't get it (Score:4, Interesting)
A. Is there a mandate that Slashdot is "technology only"?
B. Just because ALL US citizens should be concerned about this doesn't prevent it from belonging to a specific interest site, especially when the application has shown to be relevant to that special interest.
Re:Judges probably don't like it (Score:4, Interesting)
Glad someone is actually doing this.. (Score:5, Interesting)
Fun Stat:
I admin a small ISP. We received about 80k emails per day, of which about 97% are rejected by our various antispam technologies (RBL, Bayesian, etc). To reject one message as spam, it takes as many as dozens of DNS queries and such (since many anti-spam technologies rely on the DNS infrastructure to propagate the Block List). So that 1KB spam can generate 10x or more in traffic to kill it. So those who try to trivialize spam as just a nuisance have no idea what it takes to deliver your email, relatively screened-out. And guess what, next week, if another major spammer enters the biz, these numbers could double or more, just on the whim of some spammer.
Local DA (Score:3, Interesting)
The question then arises : Will the DA be interested in doing this?
Yes, it may well be perjury. It may be against the law and deserving of jail time.
But.... Does the DA have a real interest in challenging a judge on something like this. DA's present cases before judges, need judges to sign warrants, and generally rely on a judge's good impression of a DA to do their jobs. Irritating (even in a small way) a judge by challenging their rulings is not at all likely to make the judge feel all warm and fuzzy toward the DA. Do this a couple of times and I suspect that the chances of a DA keeping their job start to diminish.
Better still would be to wait till the /. article is reasonably full, print the whole thing out (along with URL) and mail it (physically) to the Governor and any groups (ACLU?) that might be in a position to actually do something, and who are not beholden to the judges to keep their jobs.
I'm wondering... (Score:5, Interesting)
A modest proposal (Score:3, Interesting)
spammers (Score:2, Interesting)
Funny. Just yesterday I got a phishing email (purporting to be ebay) with the interesting, active link pointing to some random site. I stripped out the tailing part of the url and looked at the place. Coming in at the top level, I got a directory listing - one directory was "/ws2" which led to the phishing and the other ("/a") led to a directory listing of twenty files [1,2...20].exe. So I grabbed 1.exe to see if it was something interesting (a virus, botnet executable...). Turns out it was a rar encoded windows (duh - ".exe") executable that decoded to three files "a.txt-001 - each of which contained 10000 email addresses. So that 6,000,000 addresses were probably in the 20 text files. I could (but won't - after all my name is attached to this post) sell the addresses to all and sundry. Reported this to cert and to google (there were gmail addresses in the list) and tried to report it to ebay, but they bounced back the report because it was in the wrong format or something.
I've run into botnets before, but this is the first time I've found listings email addresses like this.
Re:And so? (Score:5, Interesting)
I've had a recent run of very important correspondence with some colleagues (some peers, some more senior, some more junior). They're out of country and I'm supposed to provide them a whole bunch of information, usually in the form of answers to their questions that I need to research here to get them the answers. I found they were telling my managers that I hadn't been passing the information they requested, which of course had me e-mailing the managers with a copy of the e-mails I'd previously sent.
Turns out these guys weren't reading the reply. How do I know? Well I followed the same 'booby trap' method. In a couple of e-mails I inserted the words "if you read this sentence, e-mail be back and I'll buy you a case of beer"...
I've only had one request for the case of beer out of about 10 "ZOMG answer this or the world will end" e-mails.
The thing about small claims court (Score:5, Interesting)
And that was the end of that.
Later, someone who identified themselves to me as an attorney told me that this was the way small claims was supposed to work. Small claims was, supposedly, where anybody could go to get justice without a lawyer and without anybody getting tripped up on technicalities (which, apparently, a clearly written contract can be if the judge so decides).
I can sort of see the idea. If some slickster is ripping off poor people via incomprehensible contracts, it would be nice for them to have some place to go to say "Please do the *right* thing and help me out." In fact, very small dollar disputes in small claims in Texas (under $25, iirc) can't be appealed through the state courts at all; there is simply no intervening authority between small claims and the U.S. Supreme Court. (Which allowed a landmark suit about voting rights to jump to the Supremes in record time some decades ago, but that's another story.)
No matter how much slack I'm willing to give to small claims judges, though, not even reading a motion is just stupid and corrupt. I sincerely hope this story is getting some press play back home.
Beats getting shot while leaving the courthouse. (Score:3, Interesting)
Maybe if these 'judges' knew that they could be lynched at any time...they would put a little more effort in. A judge has got to sleep sometime you know.
Re:Am I the only one... (Score:3, Interesting)
And what the author is doing is pretty smart, and not easy to do. I used to get 3 to 5 calls a day from robots offering me satellite TV. Yes, a day. I would typically have 2-4 voicemails when I got home form work and then receive several more calls. "Gee, I didn't want this the first 37 times you called, but your 38th call has won me over."
Anyway, they were all from fake numbers with fake names, they never mentioned what company they worked for, and there was no way off their list (and I think all robo calls are illegal, anyway). The few times I bothered to go through the menus and get to a human I was told off and hung up on. I even asked the phone company but they wouldn't even tell me who was calling.
Maybe I should have requested more info or something like the author did and then sued for $500 for each law broken for each call. Instead I canceled my land line.
Completely Irrelevant (Score:1, Interesting)
Judges are quick to anger.... (Score:3, Interesting)
Trying to file a brief with a small claims judge is an exercise in futility. The rules allow it, but the judges and clerks frown on it, typically. Filing a brief...is equivalent to setting yourself up for failure. Just my humble non-legal opinion.