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.

Should see intelligent comments on this one...

since folks don't even need to read TFA, just the 'summary'

Re:Should see intelligent comments on this one...

The summary? I didn't even read your post before I replied.

Tilting at Windmills

I was going to make a snarky comment, but I suppose that what the author is doing is more productive than, for instance, playing World of Warcraft. I'm still waiting for some lawyer to file a class action against some big-league spammer (or customer of a big league spammer) and win a large settlement. That will have some impact.

Let him have it. It isn't wise to upset a judge.

But sir, nobody worries about upsetting average citizens.

That's because average citizens don't throw people in jail for making them look bad. Judges have been known to do that.

I see your point, sir. I suggest a new strategy - let the spammers win.

*infuriated beeping from Mr. Haselton*

The older I get

The clearer it becomes how random and arbitrary our system is.

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.

no

since most /.ers will read an article summary and REJECT its value without reading the whole article, I can see a judge reading the opening part of a motion, seeing that it has no merit and rejecting it.

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. This is a corrupt system that polices its self and thus nothing ever gets changed. A system that actually puts fear into those who abuse their power would fix the problem, preferably one run by the people for the people.

Doing *what* to a *what*?

"For example, when a certain Judge Gary W. Velie got in trouble for [...] telling another lawyer in court that he looked like he had been 'jacking off a bobcat in a phone booth'..."

Ok...wow. I was not previously familiar with this expression, and I'm not even sure how he came up with such a colorful simile, but I think I'm going to have to start using it.

I'm so enamored with it that I actually tried to close my <blockquote> with a </bobcat> tag. Got halfway through the first paragraph before I noticed.

Perjury

If nothing else, I'd take what info you have of the Spammer case to the local DA. What the spammer did was perjury plain and simple. Even if Judge Judy doesn't say anything about it doesn't mean that the DA won't care. They're political animals, too. If you can generate some publicity as well, then its in the DA's best interest to "protect the community from such lies and charlatens."

Am I the only one...

...who finds it depressing that several of the first comments on this article are mocking the person for attempting to follow through on the actions the law gives him access to? Unless there are people defending spam, I don't see what's wrong with anyone trying to hold the people involved accountable to some degree for their violation of the law.

It's not like this is going to eliminate spam, and it's not even like going the small claims court route is something that I find personally worth the effort. But that doesn't mean I'm inclined to think less of someone who does take legal action.

Re:Am I the only one...

You're not the only one. I found many of the comments surprisingly Trollish as well.

I think this was actually a clever thing to do, and I'm glad that there are people going after spammers while simultaneously exposing lazy-assed judges and a malfunctioning judicial system.

Even if this effort might be scorned as a "hobby" or "waste of time", I think it's more noble and worthwhile than the efforts of the average open-source contributor.

Glad someone is actually doing this..

Despite all the 'pest' comments here, I am glad someone is actually doing this. I wish I had the time to do the same. The booby-trap is just freakin great. IMHO, the judge not reading the brief should be grounds for immediate reprimand. I mean, we trust out judicial system to (interpret then) carry out the laws that are passed. I don't care if they consider it being a pest, it's the law, and it's what they were hired for. I mean, the reality is that if they (the judges) are pestered by it, they are getting a slight taste of why the law was passed! The point to be made is that if every single spam resulted in a court case, the judicial system would be suffering from the same Denial-of-Service attack that our mail servers and inboxes are. That's why SPAM is a problem!

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.

I'm wondering...

Have you approached any of the local market media with this? They could run a piece of "Investigative Journalism" - Seems like some of these judges would be excellent fodder...

"stupidest law"

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.

Erm, is the judge telling you that you are spamming the court with useless suits?
Is he saying that the law forces him to lose time handling spam?

Well, is he for or against spam? I am confused...

Re:Judges probably don't like it

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.

And so?

If the judge was doing the job s/he was being paid to do, then the judge would not have been "trapped".

What this minor experiment is showing is that we have judges who are abusing their position / authority and ruling from their own beliefs instead of from the Law.

And the mechanism for addressing that issue seems to be broken, also.

Re:And so?

What this minor experiment is showing is that we have judges who are abusing their position / authority and ruling from their own beliefs instead of from the Law.

You say that like it wasn't normal.

Re:And so?

Not just judges.

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.

Re:Judges probably don't like it

State judges are elected. Trapping them would be very interesting to their future opponents, I am sure. No one should be afraid of angering judges with legitimate means and for legitimate ends. That is why most federal judges tend to look down on state judges, for better or for worse. I would like to see a PAC present some of your evidence to voters during the next election period. That would hit the judges were it hurts, and send a signal to others.

The judge thinks you are a crank

This is *small claims* court, fercryinoutloud. The judge wasn't trapped, they didn't even read your brief in detail, and they are not required to. In fact, most cases are judged (like traffic court) based on whether the judge perceives you are wasting the court's time or not.

That being said, if you are unlucky enough to live in a state with elected judges, many many judges are cranks themselves. Enlist an attorney friend at election time and ask them to tell who who the good judges are and who are the cranks.

Typical Small Claims Case No 1: Plaintiff: "Your honor, to keep it brief, I wuz ripped off!" Judge: "I find in favor of plaintiff! Next"

Typical Case No 2: Plaintiff: "You honor it is a gross violation of that most fundamental of Human Rights the US Evil Government and their secret UFO base and allow me assemble my overwhelming evidence that they sap and impurify blah blah blah blah .. " Judge:"STFU! Next!"

Re:illegal to tape a phone conversation!

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:illegal to tape a phone conversation!

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

Re:I see what the problem is.

In the Bush era, justice is for the rich.

As opposed to the Clinton era, where justice was for the rich.

Re:If I was a judge...

Also, since most /.ers will read an article summary and REJECT its value without reading the whole article, I can see a judge reading the opening part of a motion, seeing that it has no merit and rejecting it.

IANAL (or judge), but in my limited experience, the first page is nothing more than a 'cover' page, describing the case number, date(s), names of the parties, jurisdiction, presiding judge, etc.

It contains no factual evidence as to the facts, evidence, or validity or lack thereof of the motion. So, his 'boobytrap' *does* mean that the motion was not read, other than the basic information as to what case it pertains to.

Basically, the judges are looking at the cover page and saying; "I'm not wasting my time with this, regardless of the facts or any duty of mine as a judge to actually rule on the law. The legislatures' decision to create this law and the constitutional rights of the victims of the lawbreakers to redress can go hang!".

Strat

actually, I played a disclaimer before taping it

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:Maybe...

It also would help if he stopped submitting his briefs and instead submitted his assistant's thongs.