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Anti-Spam Suits and Booby-Trapped Motions

CmdrTaco posted more than 7 years ago | from the yeah-i-said-it dept.

The Courts 397

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.

Booby Trapped Brief
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.

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Judges probably don't like it (2, Interesting)

MECC (8478) | more than 7 years ago | (#18783365)

Judges must hate being trapped. Maybe its not wise to upset them.

Re:Judges probably don't like it (4, Funny)

Doctor-Optimal (975263) | more than 7 years ago | (#18783413)

Do not meddle in the ways of judges, for they are subtle and quick to anger...

Re:Judges probably don't like it (4, Interesting)

Billosaur (927319) | more than 7 years ago | (#18783545)

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? (5, Insightful)

khasim (1285) | more than 7 years ago | (#18783569)

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? (5, Insightful)

Paradoks (711398) | more than 7 years ago | (#18783961)

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:Judges probably don't like it (5, Insightful)

gravesb (967413) | more than 7 years ago | (#18783637)

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.

Re:Judges probably don't like it (1)

hpavc (129350) | more than 7 years ago | (#18783785)

She isn't trapped if she isn't under any obligation to read the brief or his filings.

Re:Judges probably don't like it (3, Interesting)

greginnj (891863) | more than 7 years ago | (#18784085)

Technically, perhaps not, but this sort of conduct isn't likely to pass the smell test with voters. And it's especially risky with judges, who are often elected in off-cycle (non-presidential or even non-congressional) elections, which attract only the most well-informed and conscientious voters.

Judge responsible for unread briefings (2, Insightful)

davidwr (791652) | more than 7 years ago | (#18784109)

Whether the actual judge reads the briefings isn't critical.

What is critical is that someone representing the court should have read the briefings. The judge is morally if not legally responsible if the briefing goes unread.

This alone should be grounds for re-hearing.

I don't get it (-1, Offtopic)

$RANDOMLUSER (804576) | more than 7 years ago | (#18783403)

And other than that the headline contains the word "spam", this is on /. because???

Re:I don't get it (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18783543)

Same as always... don't like the subject or beginning of the article... don't read it! Just stop complaining about it.

Re:I don't get it (3, Insightful)

kisrael (134664) | more than 7 years ago | (#18783565)

And other than that the headline contains the word "spam", this is on /. because???
Because issues concerning the Internet and how the American Judicial System is willing or not willing to act when it's abused is "news for nerds" and "stuff that matters"?

What, praytell, does your vision of slashdot look like, if this would fail to qualify?

Re:I don't get it (0, Flamebait)

$RANDOMLUSER (804576) | more than 7 years ago | (#18783779)

The CASE deals with the Internet. The STORY is about the judiciary. We can look forward to lots of "IANAL" posts about how this is a Bad Thing, but it's got nothing to do with technology.

Re:I don't get it (3, Interesting)

kisrael (134664) | more than 7 years ago | (#18783967)

The CASE deals with the Internet. The STORY is about the judiciary. We can look forward to lots of "IANAL" posts about how this is a Bad Thing, but it's got nothing to do with technology.
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:I don't get it (0, Troll)

WrongSizeGlass (838941) | more than 7 years ago | (#18784003)

Now, IANAL and IANAJ, but if I was on a jury I'd vote to convict your posts because if they are on /. they obviously are guilty of something.

I see a trend... (1)

creimer (824291) | more than 7 years ago | (#18783421)

Every judge who didn't read the brief will probably run for elected office. Politicians don't read what they vote for most of the time either.

Re:I see a trend... (1)

Mockylock (1087585) | more than 7 years ago | (#18783715)

Indeed. They usually vote on whatever the loudest voice on their wing chooses. Whether or not the issue is RIGHT or WRONG, doesn't matter... as long as they vote the same as the rest of their party.

Re:I see a trend... (1)

tthomas48 (180798) | more than 7 years ago | (#18783791)

Judges are elected offices in many states. So um...

Maybe... (4, Funny)

aicrules (819392) | more than 7 years ago | (#18783445)

The motions would be more successful if you Booby-trapped them with real boobies.

Should see intelligent comments on this one... (5, Funny)

loimprevisto (910035) | more than 7 years ago | (#18783461)

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

Re:Should see intelligent comments on this one... (1)

Jarjarthejedi (996957) | more than 7 years ago | (#18783709)

Read the summary? You must be new here.

I read about 1/3 of it before getting bored...it's sad that the justice system is so, not corrupt, but like that. Corrupted by a lack of knowledge and care about a relatively serious problem. Unfortunately as I read through the part about the briefs not being read my first thought was "Yeah, what's new?" as it didn't seem all that extraordinary to me for the judge to not really know anything more than the very very rudimentary part of a case.

Re:Should see intelligent comments on this one... (5, Funny)

WrongSizeGlass (838941) | more than 7 years ago | (#18784061)

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

Can I suggest model railroads? (0, Flamebait)

Blakey Rat (99501) | more than 7 years ago | (#18783479)

Sounds like a cheaper hobby with less stress. (How much does it cost to maintain a dozen phone numbers to give to different spammers?)

Re:Can I suggest model railroads? (2, Funny)

vtscott (1089271) | more than 7 years ago | (#18784023)

If the pages of his legal briefs are getting stuck together, then he must really like writing them. Let the man enjoy his passionate love of the law.

Job / Hobby / Quest ? (4, Funny)

El_Smack (267329) | more than 7 years ago | (#18783485)

I wonder if he feels suing spammers is a Job, Hobby or a Quest? Maybe he's just grinding in small claims till he can level up enough to go after a Boss.

Re:Job / Hobby / Quest ? (0)

Anonymous Coward | more than 7 years ago | (#18783731)

Maybe he's just grinding in small claims till he can level up enough to go after a Boss.

Well, he did say he was hoping now to build something up to get into federal courts... that sounds like a boss battle to me.

If I was a judge... (1, Troll)

aicrules (819392) | more than 7 years ago | (#18783503)

And found a motion with two pages glued together, at the very least I would immediately reject it. I might go so far as to call out the person who submitted it ...maybe even wonder aloud to the officers of the court whether the substance may be something illegal...or dangerous.

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.

Or maybe the judges read them as is, wondered why the motion made no sense because of the "missing" page and rejected it because of that?

Maybe if you spent more time making valid motions than gluing paper together then you'd have more success in court?

They aren't "glued together" (3, Informative)

Mister_IQ (517505) | more than 7 years ago | (#18783659)

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

Re:They aren't "glued together" (1)

aicrules (819392) | more than 7 years ago | (#18783847)

True, but from the look of the picture, the pages don't just flop open like you would expect. Sorry, this is slashdot, I want to see evidence that the system is foolproof !

Re:They aren't "glued together" (1)

Lockejaw (955650) | more than 7 years ago | (#18783913)

Ever have one of those moments when a book's pages are kinda sticky? It's kinda like that. There's not really enough to tear the page, and just running your finger along the sticky section is more than enough to break it.

Re:They aren't "glued together" (2, Funny)

WrongSizeGlass (838941) | more than 7 years ago | (#18784113)

Sorry, this is slashdot, I want to see evidence that the system is foolproof !
Sorry to disappoint you, but this is a proprietary hack. You'll have to wait for an OSS solution to popup at SourceForge.

RTFA a bit more carefully, please. (0)

Anonymous Coward | more than 7 years ago | (#18783693)

The only thing joining the pages together was a strip of paper as big around as a pinhole. You likely wouldn't notice any tomfoolery if you weren't looking for it.

Re:If I was a judge... (5, Insightful)

BlueStrat (756137) | more than 7 years ago | (#18783787)

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

Re:If I was a judge... (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18783801)

RTFA asshat. Then you'll find out that the booby-trap was meant only to find out if they even read it.

God damn you people can be so fucking stupid.

Re:If I was a judge... (1)

aicrules (819392) | more than 7 years ago | (#18784099)

Dear Anonymous Coward,

I did read the article. Which part of the article do you think that I didn't read?

Thank you

Missing pages (1)

Nymz (905908) | more than 7 years ago | (#18783837)

Or maybe the judges read them as is, wondered why the motion made no sense because of the "missing" page and rejected it because of that?

The article has a picture that clearly shows the location of the sticking point, that shows how pages could be opened partway as normal, but not fully read without breaking the mark point.

Perhaps your personal experience with pages stuck together is more... substansive?

Re:Missing pages (1)

aicrules (819392) | more than 7 years ago | (#18783955)

Perhaps your personal experience with pages stuck together is more... substansive?
No, I read it for the articles!

Re:If I was a judge... (1)

buckadude (926560) | more than 7 years ago | (#18783931)

Well its clear that you have little to no understanding of the court systems. Now as for making valid motions, seeing as you have such a keen ability to write and understand what grounds a motion is deemed valid, what exactly is not valid about his motion as described in the article? I would wager that you don't have a clue as to how to even start a motion, lest it be the motion of sitting on your thumb wail spinning... you're probably a champ at that. cheers

Re:If I was a judge... (1)

aicrules (819392) | more than 7 years ago | (#18784039)

What an asshole you are. I'm mostly saying that if I was a judge and detected someone attempting to booby-trap a motion to see if I read it, I would immediately reject it for that reason. Alas, I'm not a judge and probably couldn't be for that and many other reasons. Then again, if I were the judge, the motion to reconsider would be coming from the spammer, as I would definitely lean on the side of the spam victims.

Didn't you read "1984"? (3, Funny)

Anonymous Coward | more than 7 years ago | (#18783521)

The government already knows that you put little markers on your papers to detect openeing, and they carefully replaced them after they read your documents.

Let me be the first to say (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18783541)

Booby

Disturbing but interesting (0)

Anonymous Coward | more than 7 years ago | (#18783551)

I thank you for this post

illegal to tape a phone conversation! (1, Informative)

Anonymous Coward | more than 7 years ago | (#18783571)

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

bleah.

Re:illegal to tape a phone conversation! (3, Informative)

LMacG (118321) | more than 7 years ago | (#18783685)

I take it YANAL.

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

Re:illegal to tape a phone conversation! (5, Informative)

IronyChef (518287) | more than 7 years ago | (#18784075)

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

Re:illegal to tape a phone conversation! (1)

Chibi Merrow (226057) | more than 7 years ago | (#18783717)

Actually that varies by state. In my state it's perfectly legal to tape any conversation as long as ONE of the parties knows it's being recorded. I'm pretty happy with that, really.

Re:illegal to tape a phone conversation! (0)

Anonymous Coward | more than 7 years ago | (#18783729)

Um... that would depend entirely on what the Washington taping statute is. Only about 12 states have two-party consent laws; without looking up the Washington statute that means there's about a 3/4 chance you're wrong here. Unless you're specifically citing a Washington law you know about, in which case, my apologies.

Re:illegal to tape a phone conversation! (5, Informative)

Hankenstein (107201) | more than 7 years ago | (#18783741)

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! (1)

xappax (876447) | more than 7 years ago | (#18783765)

it's illegal to tape a telephone conversation without both parties' consent.

Wrong. It depends on the state you're in, and most states do not require the consent of both parties. http://www.rcfp.org/taping/ [rcfp.org]

Re:illegal to tape a phone conversation! (1)

Deagol (323173) | more than 7 years ago | (#18784007)

So... was Bennet's "Washington" above the state (needs both parties) or DC (one party consent required)?

it differs (0)

Anonymous Coward | more than 7 years ago | (#18783795)

It differs widely state by state, and also differs as to notification. You are therefore incorrect, and the informative tag is ill advised.

Re:illegal to tape a phone conversation! (1)

kent_eh (543303) | more than 7 years ago | (#18783815)

it's illegal to tape a telephone conversation without both parties' consent.

In some jurisdictions.


In many others it's legal if one party to the conversation is aware of the recording.

Not necessarily... (1)

jpellino (202698) | more than 7 years ago | (#18783825)

Depends on the jurisdiction. Federal law says one party has to know it's happening. 38 states plus DC say the same. 12 states say both parties must know. It's still unclear if federal law trumps state law in this area, there's no clear established precedent.

Re:illegal to tape a phone conversation! (1)

n0dna (939092) | more than 7 years ago | (#18783919)

That would depend on the state law. Most states only require one person to be aware that the call is being recorded. Only 12 require that all parties be aware of the recording.

http://www.callcorder.com/phone-recording-law-amer ica.htm [callcorder.com]
http://www.rcfp.org/taping/states.html [rcfp.org]

Also I recall someone taping a Customer Service call to AOL (iirc) and noting that the automated system said "Your call may be monitored or recorded, etc, etc" the obvious inference being recorded by AOL, but not explicitly stated that way, and could easily be taken as granting permission to record the call. Maybe they had a disclaimer on their recorded message too.

Re:illegal to tape a phone conversation! (1)

WH (10882) | more than 7 years ago | (#18783933)

It's true that WA is a 2 party state and that's actually another good reason to sue in Federal court because they would be admissable there.

Re:illegal to tape a phone conversation! (1)

WH (10882) | more than 7 years ago | (#18783993)

I forgot to mention, if a person goes to a reservation in order to make the calls, then you're not on state land and the calls would be admissable.

Re:illegal to tape a phone conversation! (0)

Anonymous Coward | more than 7 years ago | (#18783939)

Wash. Rev. Code 9.73.030: All parties generally must consent to the interception or recording of any private communication, whether conducted by telephone, telegraph, radio or face-to-face, to comply with state law. The all-party consent requirement can be satisfied if "one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted." In addition, if the conversation is to be recorded, the requisite announcement must be recorded as well.

http://www.rcfp.org/taping/states/washington.html [rcfp.org]

Re:illegal to tape a phone conversation! (1)

SeekerDarksteel (896422) | more than 7 years ago | (#18783945)

First, the legality depends on the state. In Washington, it is a misdemeanor with a fine between $100 per day of violation. Given the time and effort the writer put in, I think a $100 dollar fine would be worth it to him to trap a spammer. If only it had worked...

Re:illegal to tape a phone conversation! (0)

Anonymous Coward | more than 7 years ago | (#18784125)

oh, shall I be the seventh person to tell you that only one party needs to know? lol.

Tilting at Windmills (4, Interesting)

rlp (11898) | more than 7 years ago | (#18783575)

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.

Re:Tilting at Windmills (1)

sqlrob (173498) | more than 7 years ago | (#18783645)

You mean like the ones Microsoft has filed, and won? Hasn't helped.

Let him have it. It isn't wise to upset a judge. (5, Funny)

mmell (832646) | more than 7 years ago | (#18783585)

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*

Re:Let him have it. It isn't wise to upset a judge (1)

Maxo-Texas (864189) | more than 7 years ago | (#18783733)

At least judges don't tear people's arms off when they get upset.

I smell a conspiracy. (2, Interesting)

maxume (22995) | more than 7 years ago | (#18783591)

Some of the judges clearly think you are a jackass and reject your submissions out of hand.

A better method... (2, Funny)

FredThompson (183335) | more than 7 years ago | (#18783595)

You can ensure it will be read if you sprinkle it with talcum powder and wipe a little grease on the edges.

LOL (1)

swschrad (312009) | more than 7 years ago | (#18783943)

and while you're at it, file as "O. BinLaden."

talcum powder and grease, oh my. you'll be on the evening news in six countries, live by satellite.

My goodness! (0, Troll)

Wandering Wombat (531833) | more than 7 years ago | (#18783597)

It's almost like judges are making legal decisions based upon their own opinions! This would be news, if it was 1930!

Seriously, grow up. Judges have better things to do than uphold laws they don't understand.

Re:My goodness! (0)

Anonymous Coward | more than 7 years ago | (#18783647)

You mean like deferring them to someone who does understand them? Or trying to learn the law? Or asking the legislature what they meant by the law? Or consulting experts? Or getting the hell off the bench in favor of someone who either knows the laws, or is willing to learn?

Re:My goodness! (1)

je ne sais quoi (987177) | more than 7 years ago | (#18783759)

Judges have better things to do than uphold laws they don't understand.
Are you serious?!? They're judges!!!! Their whole job is to understand the damn laws and uphold them. In this page is [wikipedia.org] the federal judicial oath, I'm sure each state has something similar.

"I do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States. So help me God."
[Emphasis mine.]

Re:My goodness! (2, Insightful)

krbvroc1 (725200) | more than 7 years ago | (#18783773)

Seriously, grow up. Judges have better things to do than uphold laws they don't understand.
The above quote pretty much sums up the failures of our current 'justice system', the public who fails to hold them accountable,
and the criminals complete lack of fear about breaking these laws.

Corporate and political lobbying took all the teeth out of these SPAM and Telecom laws, but Congress put the 'Small Claims' remedy in there so there
appears to be some sense of justice/enforcement. Even that remedy has failed.

My advice... (2, Funny)

Otter (3800) | more than 7 years ago | (#18783617)

You're trying to make a living as a professional plaintiff, right? Whether or not that's a useful activity (at least you're pestering people who (supposedly) deserve it), you need to develop an effective style of communication. If your rambling rants here are similar to your legal filings, I'd advise cutting the length down by about 85% and getting to the point a lot earlier. That will serve you a lot better than playing embarassing little tricks on the people you can least afford to antagonize.

By the way, whatever happened with your lawsuit against the girl who went out with you and didn't pay half?

The older I get (5, Interesting)

Maxo-Texas (864189) | more than 7 years ago | (#18783631)

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.

Re:The older I get (0)

Anonymous Coward | more than 7 years ago | (#18784079)

On the other hand, it may be possible that the judge understood what the motion was about in the first page. In professional writing, you typically start with the main idea first and provide supporting evidence in subsequent pages. If that first page was sufficient to determine that the motion had no merit, then the judge would not really need to read the next pages.

no (5, Insightful)

Anonymous Coward | more than 7 years ago | (#18783643)

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.

Re:no (1, Informative)

DragonWriter (970822) | more than 7 years ago | (#18783999)

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


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

NSFW article? (2, Interesting)

6Yankee (597075) | more than 7 years ago | (#18783649)

Does anyone else's employer have a system where too many weighted phrases too close together on a page sets off alarm bells in IT?

Thanks, Slashdot. Now my employer probably thinks I'm a racist pervert.

Re:NSFW article? (2, Funny)

eln (21727) | more than 7 years ago | (#18783963)

Hell, if my employer did that, I would probably have been escorted out by security long ago just for browsing Slashdot at -1.

Doing *what* to a *what*? (5, Funny)

CrayDrygu (56003) | more than 7 years ago | (#18783679)

"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.

I see what the problem is. (0, Troll)

sakusha (441986) | more than 7 years ago | (#18783687)

It is obvious why these lawsuits don't get any attention, under our current political regime. In the Bush era, justice is for the rich. But if you had filed a lawsuit against a Democratic candidate for political spamming, the recently appointed US Attorneys would be lining up to handle this case for you.

Re:I see what the problem is. (4, Insightful)

Chibi Merrow (226057) | more than 7 years ago | (#18783775)

In the Bush era, justice is for the rich.


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

Official Complaint (2, Funny)

moeinvt (851793) | more than 7 years ago | (#18783699)

"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."

No surprise there. Now you have to stick the pages of the official complaint together, and file a new complaint about your orignal complaint not being read.

Re:Official Complaint (2, Informative)

eric76 (679787) | more than 7 years ago | (#18783981)

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

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

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

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

Perjury (4, Interesting)

Shadow Wrought (586631) | more than 7 years ago | (#18783705)

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."

Re:Perjury (1)

Hatta (162192) | more than 7 years ago | (#18783893)

The actions of the spammer are small stakes here. The important issue is the dereliction of duty by the judiciary, and the lack of any effective recourse given the public.

It should be possible to bring charges against this judge for abuse of authority.

Am I the only one... (5, Insightful)

Control Group (105494) | more than 7 years ago | (#18783727)

...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... (5, Insightful)

moeinvt (851793) | more than 7 years ago | (#18783861)

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.

I booby-trapped my son (1, Funny)

UbuntuDupe (970646) | more than 7 years ago | (#18783769)

When my son graduated high school, I thought I'd give him something special. I gave him a car. But more importantly, I wanted him to follow in the ways of Our Lord and Savior. So I first gave him a Bible, which had the keys to the car inside of it. When I presented it to him on graduation, he was appalled. "Thanks for nothing, dad!" He told me. Ungrateful jerk. He left us and I never heard from him for ten years. Then I'd found he'd been arrested for mugging.

I visited him and told him I probably could have done more for him and, would he like the stuff in his old room back? He said sure, why not.

He was surprised to find the old Bible I tried give him and which he rejected. Amazed, he thumbed through it. Then an envelope fell out. He opened it and saw the keys. Then it dawned on him: "Dad ... when you gave me the Bible ... you were really giving me a new car?" I said no, I was giving you a Bible, a car, and, hopefully, some humility. "Why didn't you TELL ME ALL THESE YEARS?" he asked. "Well," I responded, "why didn't you trust my judgment that the Bible was what you really wanted?"

Then I realized that none of that actually happened and I'm just repeating a tired old made-up story.

Absolutely Detestable (1)

tehwebguy (860335) | more than 7 years ago | (#18783789)

I don't think that I would have the self control to deal with someone abusing their power like this.

If the state doesn't profit from it.... (1)

johnny cashed (590023) | more than 7 years ago | (#18783813)

They aren't interested in spammer lawsuits.

They don't mind minor drug cases clogging the system, because the state gets large fines from the drug user. But having a lot of spam cases in small claims court, well, that just wastes their time.

As someone who has spent some time in front of a judge, this doesn't surprise me in the least.

Well, it's no wonder (1, Troll)

BanjoBob (686644) | more than 7 years ago | (#18783839)

It is no wonder that so many people today have lost all respect for the U.S. Judicial system. Just glance over at SCO v. IBM for a laughing stock of what's wrong with the system. Then we have a Supreme Court that rules on everything NOT in the Consititution. We have judges making law and a Congress being judges. The legal system is so screwed up, its amazing that it even works at all... Wait! It Doesn't! Look at all the sexual predators out on the streets. Murderers repeating their acts. The rising numbers of unsolved crimes....

No, after thinking about it, this is just par for the legal system.

Deeper issues? (-1, Troll)

Itninja (937614) | more than 7 years ago | (#18783865)

This person sounds like someone who's daddy didn't get them a pony when thay were a kid. Or maybe they were picked on is school.I mean come on, spam is the bane of the IT industry. But's it's not like it's a life-and-death issue. Put that passion towards things that really matter!

The best lawyer (1)

alberion (1086629) | more than 7 years ago | (#18783965)

You know what they say:
The good lawyers know all the laws.
The best lawyer knows the judge.

Jokes apart, I (and all the other people who gets spam) wish you all the luck. Maybe with some examplar punishment for a few spammers the rest of them will think about alternative career choices.

Legal system is so screwed up anyway (3, Informative)

guruevi (827432) | more than 7 years ago | (#18783995)

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

I'll give you another example: Traffic cops:

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

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

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

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

Uh huh huh huh (0, Offtopic)

CrimsonScythe (876496) | more than 7 years ago | (#18784001)

Uh huh huh huh, you said "booby"!

Wow... (1, Redundant)

rawg (23000) | more than 7 years ago | (#18784017)

I'm amazed by the amount of negative comments about this guy trying to fight spam. It seems like you people like spam or something? I welcome anyone who is doing something about all the spam. I spend $600 a month fighting spam, and I'm sure others spend more.

Wrong (2, Insightful)

christurkel (520220) | more than 7 years ago | (#18784067)

The judge was correct about your taping the phone call but for the wrong reasons. You cannot record anyone without permission unless you have a court order. Playing that recording in Court was a BAD idea. You broke the law.

Re:Wrong (2, Informative)

faedle (114018) | more than 7 years ago | (#18784103)

Actually, that's not true everywhere.

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

The inevitable conclusion... (2, Insightful)

Rob T Firefly (844560) | more than 7 years ago | (#18784069)

Anyone taking bets on how soon they implement rules against handing in legal papers with white-out on them?

Wow, what a discovery! (0, Troll)

cdrguru (88047) | more than 7 years ago | (#18784077)

You've discovered that outside of a pretty rabid minority spam doesn't factor into most people's lives. If they see it, they delete it and move on with their lives. There are a few, very few, that turn this into an all-encompassing passion.

Also, anti-spam laws are meaningless. As the author of this discovered, the legal system has better things to do than get involved with things that are so many shades of gray. No, there isn't a good legal definition of spam that will hold up in court. No, it isn't possible to track down the sender of the spam. No, it isn't possible to differentiate between someone paying for leads in a disinterested manner and someone that sets out to hire a spammer.

Small claims court judges get through the day by not deciding against people where there is doubt about their intent or culpability. Yes, you can win something when the defendant doesn't even bother to show up because that says to the judge that no matter how little he or she thinks of your case, the defendant has less respect for his office.

If you really think you have the time and resources to waste in Federal court, by all means try. But you are likely to find yourself in a situation where you have to prove intent of the other party. Or validate a definition of spam and show how their mailings meet that definition in accordance with both the Washington state law and CAN-SPAM.

Glad someone is actually doing this.. (5, Interesting)

vbrookslv (634009) | more than 7 years ago | (#18784091)

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.
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