Spammer Perjury is Worth Prosecuting 161
I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:
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When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.
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A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.
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One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)
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A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.
Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.
The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)
But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.
Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.
In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.
At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.
But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.
The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)
Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)
Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:
Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?
Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?
Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.
This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.
But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.
In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.
The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.
In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.
Spammers don't "lie"... (Score:5, Insightful)
They just have an extremely casual relationship with objective reality.
Rule #1 (Score:3, Insightful)
A bigger problem... (Score:5, Insightful)
Oh dear. (Score:5, Insightful)
Look, I'm no lawyer. Just a law school student. As a student, I have no time to respond in full, or even truly in part. It's just that bad.
I will say, however, as a bit of caution: there is no easier way to lose a small claims case than to bring a lawyer along with you, with the possible exception of attempting to act like you are an attorney by quoting the rules of evidence.
Judges don't like it, and with reason. Small claims is a simple procedure - evidence is presented, cases are decided in 10 minutes or less (often much less), and the matter goes on. Period.
The rules of evidence are very, very complicated. There's a reason people do hire lawyers, and a good reason to avoid these rules in small claims to keep the courthouse doors open to the people. When you start quoting the rules of evidence to a small claims court judge, don't expect a positive response. As a personal example, my brother-in-law went to small claims court against a party who did decide to bring along an attorney. As the sides began to examine witnesses (a process the judge allowed more to amuse the attorney than out of typical practice), the opposing side's attorney began to object to my brother-in-law's questions. Now, if you've read the rules of evidence, you know it's not easy to form a question that is safe from objection. This is why people hire attorneys to litigate on their behalf. The judge, however, refused to uphold any of the objections and, after overruling three of them, told the attorney to "sit down, shut up, and let the man ask his questions." Unsurprisingly, the side that had not brought an attorney prevailed in a big way.
I would recommend that this gentleman either get an attorney or stop with the cutesieness. Small Claims Judges don't like cutesy. They like simple, straightforward fact. Don't start quoting rules of evidence. Don't contrive ways around recording phone calls. Look up the statute, decide if you meet the basic requirements, and argue a simple, forthright case. Don't say things like "obviously". Don't argue law - argue fact.
Re:It would be nice... (Score:3, Insightful)
Despite your ridiculously low slashdot ID, your analysis is wrong.
(x) No one will be able to find the guy or collect the money
Really? This one regular guy was able to find them without very much effort. How much easier would it be with a subpoena or search warrant?
(x) The police will not put up with it
The police don't care much. In fact, I think the police like it when an open & shut case drops in their laps. It makes them look good by increasing their arrest & conviction rate without any effort.
(x) Requires too much cooperation from spammers
Spammer cooperation not required.
(x) Requires immediate total cooperation from everybody at once
Not at all. But if a spammer is hit with a big fine and/or jail time maybe they will rethink their ways.
(x) Anyone could anonymously destroy anyone else's career or business
No, since you have things like judges and juries who look at the evidence to determine how reliable it is.
(x) Asshats
The idea is to slap the asshats with fines and/or jail time.
(x) Jurisdictional problems
You just need to find a court where the spammer is located or does business.
(x) Unpopularity of weird new taxes
Tax? What tax?
(x) Extreme profitability of spam
Ok, maybe this one is correct. A spammer could just pay the fine. However, if they get sent to jail, that is a different story.
Martha Stewart was investigated for insider trading. She wasn't sent to jail for that. There was no evidence she engaged in insider trading. She was sent to jail for lying to investigators while being investigated for insider trading. And she wasn't even under oath at the time.
(x) Joe jobs and/or identity theft
No, since you have things like judges and juries who look at the evidence to determine how reliable it is.
(x) Technically illiterate politicians
Politicians are irrelevant, it's the judges & prosecutors that matter. And judges often get pissed when people lie in their courtroom.
(x) Extreme stupidity on the part of people who do business with spammers
This has nothing to do with people who do business with spammers, it's the spammers themselves.
(x) Dishonesty on the part of spammers themselves
Ummm, that's the point. Catch them in their dishonesty.
(x) Ideas similar to yours are easy to come up with, yet none have ever been shown practical
This one regular guy was able to find them without very much effort. How much easier would it be with a subpoena or search warrant?
(x) Feel-good measures do nothing to solve the problem
It won't solve the entire problem, but it will feel good and solve part of the problem.
(x) Killing them that way is not slow and painful enough
Hey, I agree!
(x) Sorry dude, but I don't think it would work.
Despite your ridiculously low slashdot ID, your analysis is wrong.
Much harder to prove perjury than to win the suit (Score:4, Insightful)
None of the examples you provided are clear, provable examples of perjury. A recording obviously isn't testimony. Maybe he lied to you when you were recording him? He wasn't under oath then. Maybe the guy saying he didn't even sell merchant accounts, didn't sell them at the time, but now he does? If you can think of a plausible scenario where what he said could technically be looked upon as true (even if you and I "know" he's lying), that's a far cry from being able to prove that he perjured himself. Even the case where the guy said the wrong e-mail address isn't quite open-and-shut. Is there really enough evidence to prosecute him? A civil trial has a lower burden of proof than a criminal one. Just because a judge awards you judgment(believing the defendant was lying) doesn't mean there's enough evidence to convict him of perjury.
Can you prove it? (Score:2, Insightful)
Re:It would be nice... (Score:3, Insightful)
I'll agree with the humor. But it's a sad state of affairs when genuinely interesting arguments are reduced to the drivel of a geek-form response.
Re:It would be nice... (Score:3, Insightful)
I *so* hate those sorts of responses.
Here's the shortest summary of the original article:
"Why won't the judicial system enforce the rules and laws we already have in place?"
English, do you speak it? (Score:3, Insightful)
But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury -- if they were here, I'd tell them that they just had a really close call."
Do you know what "inadmissible" means?
It's just as likely, and appropriate, for the Judge to say, "Well, if the defendant was found in a room holding a knife standing over a dead body which had just been stabbed to death, then they could very well be arrested for murder."
Lying is not perjury (Score:3, Insightful)
"then they could very well be arrested for perjury"
Perjury is lying by a witness under oath. The spammer on the telephone call you recorded and the letter sent to the court by the spammer were not made under oath so therefore they were not perjury.
Your arrogance is unwarranted (Score:3, Insightful)
I rather enjoyed the poster's comments and read them fully, as I did his previous postings.
His overall tone and conclusion is that the system doesn't work for us common folk, which reflects my own experience with the court system.
It's a simple problem in game theory: people will do the least amount of work for the maximum amount of gain. As applied to judges (or any government employee), that means showing up late, not bothering to read paperwork, and generally opting for the shortest path to going home early.
The expected slashdot comment for this type of post should read something like "Government employee doesn't do their job, film at 11".
I've anecdotally polled several people about the cost benefits of taking someone to small claims court, and the overwhelming opinion is that it's not worth it. Judges are arbitrary, don't know the law, and don't bother to enforce it.
Think about what this means for a moment: the general population (again, my polls are anecdotal) has lost faith in the idea of taking someone to court to have their grievances settled.
You appear to talk with the authority of a lawyer, or maybe you're a judge yourself. Good for you! Tearing down an (obviously) non-lawyer is trivial for someone at your level of learning and experience.
Now explain to me how his conclusions are wrong, that the system works as advertized, and any sense of justice is ever accomplished.
Re:Why treat spammers differently? (Score:2, Insightful)
That means if little ol' grandma is getting sued by the RIAA and she says "I never downloaded any music!" but the RIAA produces some log from an ISP showing that her niece e-mailed her some Britney Spears song, well we'd have to persecute grandma for perjury.
Though I agree with your general point regarding equal application of the law, I am going to quibble with the above example. Also, I think you meant "prosecute" and not "persecute".
Black's Law Dictionary defines perjury as "The act or an instance of a person's deliberately making material false or misleading statements while under oath." Assuming a jurisdiction where this definition is used in either the common law or statutory definition of perjury, Granny (or, more likely, her lawyer) might rightfully argue that she understood the question regarding music downloads to be constrained to the use of P2P software and so did not "deliberately mak[e] false or misleading statements while under oath."
Perjury contains an element of intent for a reason. The point is not to punish mistaken testimony but to punish those who intentionally mislead the court. There are substantial policy reasons to let the former go while punishing the latter. Perhaps a better example is to say that a judge would be loathe to enforce penalties for perjury against the grandmother who is lying to protect the niece's use of Grandma's computer to download music.
Re:Nice idea... (Score:3, Insightful)
I'm not a lawyer either (and I don't ANAL), but I do have some experience with the legal system. I've been in court a dozen or so times, as defendant, plaintiff, and witness, in criminal, civil, and small claims trials. Aside from traffic court, I haven't lost a case. (The first time I was in court was for a traffic case. I lost because I was wearing shorts and sandals.)
One thing I've learned is that a little humility goes a long way.
For instance, instead of introducing an illegal tape recording with "Under rules of evidence, statute number blah blah blah...", say instead, "Your honor, he told me on the phone that he blah blah blah. I have a tape recording of the call here if you want to hear it."
The latter will be more likely to lead to the judge asking the defendant if he really said that, and the defendant admitting it, fearing that the judge will listen to the tape recording. (Remember, the defendant, for all his attempts to intimidate you, probably doesn't have any more actual experience than you do.)
It's even possible that in such a case, the judge may agree to listen to the tape recording, if it's short.
From the article, the writer comes off as if he's telling the judge how to do his job. Judges hate that as much as an engineer, or anybody else, would. That makes him defensive and more strict about how he treats you and your evidence, which is the last thing you want. You don't have to convince the judge that you're smarter than him, you have to convince him that you've been wronged and he can set things right. Let him know he can safely give you an inch without worrying about you trying to take a mile.
Also, don't try to talk like a lawyer. Never say "the defendant", say "him" (or "her" if appropriate). You're not playing Perry Mason, you're playing Joe Blow off the street who has been seriously aggrieved and after trying everything is finally taking it to court. Don't look like you're enjoying it, even if you are.
Trying to explain to the judge how clever you were in getting around the law he's sworn to uphold probably doesn't win any points, either.
Re:What's so bad? (Score:3, Insightful)
So this is a serious question. What's so bad about spamming that everyone hates it?
That's an interesting question, actually. I can't speak for everyone, but I can say why it bugs the heck out of me.
(a) Insulting your intelligence. Wow, every single bank in America uses that same beige backgrounded messages to warn about problems with my account? Really? The only reason these messages get sent out is because 1% of 1% of 1% of people are honestly stupid enough to fall for them. You are being lumped into that potential group of rubes every time someone sends you spam.
(b) Insulting your intelligence pt 2. I just got junk mail from Dice.com while writing this post saying that I'd "opted-in" for some partner ads. BULLS---. I *never* opt-in for *any* of this crap, EVER, and I haven't used their site for over a year. "Opt-in" spams really make me wonder who they think they're fooling.
Counter-point: Much like the drug trade, spam is largely tied up in crime because there's such heavy social and legal pressure against it.
Counter-counter-point: Legitimizing spam won't make spam for criminal goods less shady. It'll just open up the torrents for more reputable companies to bother you.
In summary, spammers are jerks who hide behind the shield of the internet to hawk shady goods to people they believe are idiots -- i.e. you.