Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.
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:
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.
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.
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.)
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?
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.
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.