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Spammer Perjury is Worth Prosecuting 161

Posted by CmdrTaco
from the love-a-little-alliteration dept.
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?
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.

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Spammer Perjury is Worth Prosecuting

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  • by idontgno (624372) on Wednesday October 08, 2008 @12:06PM (#25300841) Journal

    They just have an extremely casual relationship with objective reality.

    • It should be no surprise that spammers lie.

      After all just look at typical spam emails.

      So many spams have:
      Fake Subject field
      Fake Sender field
      Other fake headers
      Deceptive content

      After all those lies do people actually believe they can send spammers real (humour me ok?) money and expect something that's not fake?

      If judges can't see it's fraud (lying for personal gain) perhaps those judges are fakes too.
    • by gstoddart (321705) on Wednesday October 08, 2008 @01:48PM (#25302491) Homepage

      They just have an extremely casual relationship with objective reality.

      No, they lie.

      I am seeing an increase in spam messages that have a disclaimer at the bottom indicating that "this message was sent by Fox New Corp" with the mailing address of them in NYC, and if I want to opt out I can go to the following link. Of course, the unsubscribe link is on the same site that the spam is directing you to.

      This gives the illusion of complying with CANSPAM, but, in reality, it demonstrates how completely toothless CANSPAM really is.

      If they can't track down who is actually sending it, then start punishing the companies who are benefiting from it and make them responsible for how their "affiliates" are marketing their products. Because, really, these companies get to act like they're not spamming, but they're benefiting from it. I'm fairly sure that whatever fake "Canadian Pharmacy" these things point to isn't a legitimate business and shouldn't be able to pretend that a bunch of people they don't know are directing "customers" to their web site.

      Unfortunately, I don't have any idea of how we're ever going to reduce the amount of spam -- but, by its very nature, spam is almost always dishonest, and often outright fraudulent.

      Cheers

      • If they can't track down who is actually sending it, then start punishing the companies who are benefiting from it and make them responsible for how their "affiliates" are marketing their products

        Won't work. Otherwise I could send spam pretending to be an "affiliate" of a company I don't like (MS?) and if they can't trace the spam back to me, then that company gets penalized for nothing.

        Unfortunately, I don't have any idea of how we're ever going to reduce the amount of spam -- but, by its very nature, spam

    • The real problem is that almost *no one* ever gets convicted of perjury. The judges and lawyers keep it that way so when they lie in court, it's hard to convict because you need iron clad proof that they deliberately intended to mislead while under oath. Sorry, but I don't think that will ever change considering the system is build for lawyers.
    • They just have an extremely casual relationship with objective reality.

      I have a friend who I met through a club we were both members of. He isn't a spammer as such, but I think he falls close to this category. He's more of what another friend of my refers to as a crazy-maker. Supposedly it means someone who doesn't really have much perception of reality and what's going on around them, and they'll work really hard to do things their way without realising just how much they're intimidating people around t

  • Rule #1 (Score:3, Insightful)

    by HermDog (24570) on Wednesday October 08, 2008 @12:08PM (#25300871)
    Spammers lie. Perjury convictions should be an automatic add-on.
  • Look, you know and I know that V1@GR@ V!C0D1|\| 3nl@rg3 Y0|_|R M3mb3r bible bracelet dragon carboard zapper free, but that's not really relevant to the legal issues here.

  • by mfh (56) on Wednesday October 08, 2008 @12:10PM (#25300915) Journal

    But it won't work because:
    Your post advocates a

    ( ) technical (x) legislative ( ) market-based ( ) vigilante

    approach to fighting spam. Your idea will not work. Here is why it won't work. (One or more of the following may apply to your particular idea, and it may have other flaws which used to vary from state to state before a bad federal law was passed.)

    ( ) Spammers can easily use it to harvest email addresses
    ( ) Mailing lists and other legitimate email uses would be affected
    (x) No one will be able to find the guy or collect the money
    ( ) It is defenseless against brute force attacks
    ( ) It will stop spam for two weeks and then we'll be stuck with it
    ( ) Users of email will not put up with it
    ( ) Microsoft will not put up with it
    (x) The police will not put up with it
    (x) Requires too much cooperation from spammers
    (x) Requires immediate total cooperation from everybody at once
    ( ) Many email users cannot afford to lose business or alienate potential employers
    ( ) Spammers don't care about invalid addresses in their lists
    (x) Anyone could anonymously destroy anyone else's career or business

    Specifically, your plan fails to account for

    ( ) Laws expressly prohibiting it
    ( ) Lack of centrally controlling authority for email
    ( ) Open relays in foreign countries
    ( ) Ease of searching tiny alphanumeric address space of all email addresses
    (x) Asshats
    (x) Jurisdictional problems
    (x) Unpopularity of weird new taxes
    ( ) Public reluctance to accept weird new forms of money
    ( ) Huge existing software investment in SMTP
    ( ) Susceptibility of protocols other than SMTP to attack
    ( ) Willingness of users to install OS patches received by email
    ( ) Armies of worm riddled broadband-connected Windows boxes
    ( ) Eternal arms race involved in all filtering approaches
    (x) Extreme profitability of spam
    (x) Joe jobs and/or identity theft
    (x) Technically illiterate politicians
    (x) Extreme stupidity on the part of people who do business with spammers
    (x) Dishonesty on the part of spammers themselves
    ( ) Bandwidth costs that are unaffected by client filtering
    ( ) Outlook

    and the following philosophical objections may also apply:

    (x) Ideas similar to yours are easy to come up with, yet none have ever
    been shown practical
    ( ) Any scheme based on opt-out is unacceptable
    ( ) SMTP headers should not be the subject of legislation
    ( ) Blacklists suck
    ( ) Whitelists suck
    ( ) We should be able to talk about Viagra without being censored
    ( ) Countermeasures should not involve wire fraud or credit card fraud
    ( ) Countermeasures should not involve sabotage of public networks
    ( ) Countermeasures must work if phased in gradually
    ( ) Sending email should be free
    ( ) Why should we have to trust you and your servers?
    ( ) Incompatiblity with open source or open source licenses
    (x) Feel-good measures do nothing to solve the problem
    ( ) Temporary/one-time email addresses are cumbersome
    ( ) I don't want the government reading my email
    (x) Killing them that way is not slow and painful enough

    Furthermore, this is what I think about you:

    (x) Sorry dude, but I don't think it would work.
    ( ) This is a stupid idea, and you're a stupid person for suggesting it.
    ( ) Nice try, assh0le! I'm going to find out where you live and burn your
    house down!

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      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)

      • I was the original author of the spam form. Don't believe me? Read the original post from 2003. [slashdot.org]

        That form wasn't really written to discourage people from doing nasty things to spammers like suing them or keying their cars. These are "feel-good" measures and I approve of feel-good measures. But still, feel-good measures don't amount to solutions to the spam problem. The form was written with the assumption that the problem is probably unsolvable. Anything that works like email, and has the attributes that we

    • Re: (Score:3, Insightful)

      by erroneus (253617)

      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?"

  • by robinsonne (952701) on Wednesday October 08, 2008 @12:10PM (#25300917)
    A bigger problem with spammers perjuring in court...is getting the spammers in court in the first place.
  • by MikeRT (947531) on Wednesday October 08, 2008 @12:14PM (#25300969) Homepage

    All perjury should be punished. It's always a serious crime to knowingly screw up the legal system with lies. If a cop is caught committing perjury, the judge should be empowered to summarily strip him or her of their badge and gun the moment they get off the witness seat. If someone does it to avoid any punishment, their punishment should be automatically doubled, without mercy. If someone bears false witness against a defendant to get them convicted, they ought to be sentenced to the identical punishment that the defendant would have gotten, even up to the death penalty.

    When you commit perjury, you are pretty much always denying someone justice. You simply cannot support a conservative enforcement of perjury and then bemoan the increasing lack of justice in the system.

    • Double Death Penalty! F-F-FINISH HIM!
    • by HTH NE1 (675604)

      If someone bears false witness against a defendant to get them convicted, they ought to be sentenced to the identical punishment that the defendant would have gotten, even up to the death penalty.

      So... treat it like pass interference?

    • by Dr. Manhattan (29720) <sorceror171&gmail,com> on Wednesday October 08, 2008 @12:34PM (#25301279) Homepage
      Hell, I'd be happy if the existing penalties for perjury were imposed. Ever. For a really egregious and obvious example, see the case of Pamela Fish [chicagotribune.com].
    • Pretty much. Punishing people who fail to cooperate with the courts or mislead them deliberately need to be punish, in game theoretical terms it suddenly makes it a lot more attractive to tell the truth. It reminds me of some study about cheating in games, and how cheating goes up a lot slower with increasing number of players if players are punished for not reporting cheating. Also, being a Brit I get the imperssion that perjury is taken a lot more seriously here - see Jeffrey Archer and all the others w
    • Re: (Score:2, Interesting)

      by DavidTC (10147)

      I agree with you, although I think perjury is sometimes understandable, especially when it isn't to avoid criminal prosecution but to avoid embarrassment.

      I wish that witnesses on the stand could ask to 'approach the bench' if they wished to. Or, at the very least, ask for a closed courtroom.

      But, yes, anyone who lies to get out of punishment, anyone who is actually found guilty, should be prosecuted for perjury. Same with anyone who attempts to incriminate someone else.

      • by pbhj (607776)

        I wish that witnesses on the stand could ask to 'approach the bench' if they wished to. Or, at the very least, ask for a closed courtroom.

        They have the right to remain silent and not to offer testimony that will incriminate them.

        [...]
        Prosecution: Did you have an affair
        Defendant: ""

        If you say nothing your wife will still suspect (at least) if you request a closed session your wife will still suspect. If you're unlucky, even if you answer "Never, I love my wife", your wife will still suspect.

    • All perjury should be punished. It's always a serious crime to knowingly screw up the legal system with lies

      You jump from the legal system to ethical claim. Implicitely it seems you're assuming every legal crime should be punished. Fortunately, apart from Hobbesian psychopaths, no one believes that.

      • by Arthur B. (806360)

        To make myself clear, if the government decides to decapitate mormons and you're a mormon, it's ok to lie in court. And you emphatically shouldn't be prosecuted for it.

    • by Dare nMc (468959)

      If a cop is caught committing perjury, the judge should be empowered to summarily strip him or her of their badge and gun the moment they get off the witness seat.

      But then with all the cops unemployed who would protect the crispy creams of the world?(/joke)
      I have even had a judge try to make me feel better after finding me guilty (in traffic court) by telling me he knew the cop was lying. IMHO that is somewhat why jury trials (with a good lawyer) usually gets found innocent. When (some/most???) COPS give a

    • If a cop is caught committing perjury, the judge should be empowered to summarily strip him or her of their badge and gun the moment they get off the witness seat.

      I thought that cops (and people in general) were not permitted to carry firearms into a court of law.
      • by rabbit994 (686936)

        Depends, at my local area, Cops in uniform are allowed to carry in Courthouses even if they are giving testimony.

    • by flink (18449)

      While admirable my own limited experience suggests that prosecuting every act of perjury would be impractical. I've sat on two juries at criminal trials, the second of which was actually a perjury trial. In both trials, a plurality of the eye witnesses called had to be, let's say, "mistaken". That means even a simple trial with say 7 to 10 witnesses total would generate 3 or 4 potential perjury trials.

      The perjury trial I sat on was in relation to a homicide, and they basically retried the entire murder a

  • by Anonymous Coward
    Cops lie all the time too, and they never get punished. Why should spammers be any different?
  • dude (Score:5, Informative)

    by nomadic (141991) <nomadicworld@nOSpAM.gmail.com> on Wednesday October 08, 2008 @12:30PM (#25301197) Homepage
    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?

    You're missing the point I think. Rules of Evidence introduce a level of formality that really would derail small claims court. In standard civil trials it's not uncommon for there to be a half-dozen hearings on evidentiary matters before trial. Plunking down what you claim to be a tape of the defendant would not be allowed; it would have to go on the pretrial exhibit list and both sides would have a copy. The defendant would be able to attack its validity in a pretrial hearing. The judge was in her rights to ignore it in this case.
    • Re: (Score:2, Interesting)

      by NeoSkandranon (515696)

      Haven't we heard from this guy before? It seems like lots of his problems with "the system" seem to be mostly geared around not understanding how the courts work, and possibly arguing with judges.

      • He whines about spammers not following the rules, then wants the judge to not follow the rules, or rather, wants the judge to follow his own rules, as if he knows more about that than the judge.

        Especially thinking evidence in a Washington state court should follow rules in the state where he made the recording. Number one rule in court: don't piss off the judge.

        • Number one rule in court: don't piss off the judge.

          While that is practical advice, it is certainly a shameful indictment of the legal system to elevate it to a rule, much less the first rule.

          • Well, number one rule in life: don't piss off other people (that you can't afford to).

            Shameful? That's life dude...

            Dealt too much with emotionless machines lately?

            • Well, number one rule in life: don't piss off other people (that you can't afford to).

              It is part of the job of people who have been given power over others to do as much as they can to eliminate bias in their decisions.
              They are human, but they are still expected to behave to a much higher standard than an everyday joe schmoe.

              As far as I can see, the only cases where Haselton has actually pissed off a judge (none of which were in this particular article) the judge was clearly acting capricously.

              Dealt too much with emotionless machines lately?

              Not thought through the consequences of rolling over and just accepting bad governing lately?

              • It is part of the job of people who have been given power over others to do as much as they can to eliminate bias in their decisions.
                They are human, but they are still expected to behave to a much higher standard than an everyday joe schmoe.

                Agreed.

                Not thought through the consequences of rolling over and just accepting bad governing lately?

                It's basically an uphill battle. People *are* biased, despite efforts in attempting (to pretend) not to be. That doesn't mean I'm going to stay silent when things to reall

  • Spam will save the economy! [today.com]

    Just imagine failed bankers going into spam instead. All Hot SUBPRIME MORTGAGES! Collateralised V!K@GKR@ Obligations! You will search an hour for your underwear in the ocean of your debt!

  • Oh dear. (Score:5, Insightful)

    by Anonymous Coward on Wednesday October 08, 2008 @12:30PM (#25301205)

    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.

  • Why should spammers be treated differently? You know justice is supposed to be blind, if they prosecute all spammers who perjure in court then they must prosecute EVERYONE who perjures in court. 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. Judges don't generally want to do that to everyone and

    • by Benanov (583592)

      Why should spammers be treated differently? You know justice is supposed to be blind, if they prosecute all spammers who perjure in court then they must prosecute EVERYONE who perjures in court. 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.

      Why? The grandma never downloaded any music. The niece did.

      • her niece e-mailed her some Britney Spears song

        When Granny opened up the attachment, she downloaded the song from the mail server.

    • Re: (Score:2, Insightful)

      by jelton (513109)

      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 arg

  • And the reason why judges (and prosecutors) won't pursue perjury charges is very, very simple: it would increase their workload, and they already have more than they can do in an ordinary 80-hour week.

    You can argue till you turn blue and die that enforcement would actually reduce their workload in the great bye-and-bye but it Just Ain't Gonna Happen.

    • by Hatta (162192)

      If there aren't resources to effectively enforce a law, that law should be taken off the books. Perhaps they should prioritize, and start prosecuting perjurers instead of pot smokers. That should clear up some space on the docket.

      • If there aren't resources to effectively enforce a law, that law should be taken off the books.

        You're making the totally unfounded assumption that the purpose of a law is to be obeyed. On the contrary, the purpose of many laws is to stroke some group of constituents while remaining secure in the knowledge that the law will never be enforced. CAN-SPAM is a good example, as are the plethora of bills passed each year that are immediately rejected as unconstitutional. Again.

  • Spammers are liars. But it's an oxymoron to say it.

  • by Fastolfe (1470) on Wednesday October 08, 2008 @12:36PM (#25301315)

    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.

  • Haven't I read this essay before?
  • Can you prove it? (Score:2, Insightful)

    by 91degrees (207121)
    Can you prove, beyond reasonable doubt that he was lying, that he knew he was lying, and that the statement that contradicted the lie (e.g. the recorded telephone calls) were not actually misinformation to prevent a potential competitor from stealing his way of doing things?
  • I've been to small claims court. The plaintiff said "He hasn't given me a dime". I said "I have the a copy of the cleared check right here". Guess what? The judge DID NOT CARE that she was lying! In any given small claims case, the judge assumes both sides are lying equally and splits the difference (the judge arbitrarily made me pay about half the amount she was requesting -- really! To this day, I have no idea where he came up with the number.) Which means if you go in there and simply TELL THE TRUTH, you
  • by mcmonkey (96054) on Wednesday October 08, 2008 @01:00PM (#25301725) Homepage

    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."

  • 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.

    Did the defence council object on the basis that you broke Rule 26 of the Federal Rules of Civil Procedure by not diclosing this information?

  • Judge Eiler (Score:4, Interesting)

    by Frosty Piss (770223) on Wednesday October 08, 2008 @01:06PM (#25301831)
    Judge Eiler is well know in King County to be hard to deal with:

    A Seattle-area judge has been accused of routinely interrupting litigants and lawyers and addressing them in a manner that is "angry, disdainful, condescending and/or demeaning."

    The state Commission on Judicial Conduct claims in a statement of charges (PDF) that Judge Judith Eiler treated lawyers and self-represented litigants in a way that is "rude, impatient, undignified and intimidating," the Tacoma News Tribune reports.

    Eiler underwent behavior therapy with an emphasis on sensitivity training after she received a reprimand in 2005 for impatient and rude behavior, the story says.

    The way the she deals with people in her court shows that she should retire from the bench and do something else. Like become a correctional officer or something.

    http://www.abovethelaw.com/judge_judy_judith_sheindlin/ [abovethelaw.com]

  • by Valdrax (32670) on Wednesday October 08, 2008 @01:12PM (#25301931)

    Stop posting these long-winded inexpert screeds on the law. You simply don't know what you're talking about as demonstrated repeatedly in article after article, and you do a great disservice to the Slashdot community by foisting your uninformed opinion on us as fact.

    Let me point out two parts of Washington law that you might not be aware of that I was able to dig up with mere Google searches (and no need of Westlaw or any other expensive legal tools):

    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."

    Perhaps you should look at RCW 9.73.050 [wa.gov]. While the court doesn't have jurisdiction to see you fined or prosecuted for actions taken outside of the state completely that would be a violation RCW 9.73.030 [wa.gov], they are not obligated to treat your out of state acts as not an ones that would be proscribed. You can't do an end-run around evidentiary rules that way. Note how nothing in the statute requires either party to be in Washington to count as a violation under the section 030 definitions referenced in 050. You conversation, therefore, still meets the exclusion rule.

    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?

    Evidence rules are normally relaxed in Small Claims Court for two reasons:
    1) To keep the court proceedings simple for non-lawyers.
    2) To keep the case from becoming overly long and complicated.

    It seems like the second rationale controlled here. Whether you think that's right or not is a matter for Washington voters to fix and not grounds to question the moral integrity of the judges before everyone. The judge may have well only been doing what the law requires. See RCW 12.40.090 [wa.gov] mandating informal hearings "with the sole object of dispensing speedy and quick justice between the litigants."

    Small claims court is a different animal from real court. It's supposed to be court without need for lawyers. One of the consequences of that is that it doesn't follow all the rules. You've made an impressive effort to learn Washington law, but you haven't researched the problem deeply enough, so please stop writing these screeds about how awful your local judges are.

    Lastly, your article once again reached its conclusion very early on and should've stopped there:

    The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial, is that it's just not worth it.

    Since the title of this article is that that's not true and you haven't really provided any evidence the cost-benefit analysis is any different (instead of rehashing whining about how small claims court didn't go your way AGAIN), the rest of this article should've been cut.

    • 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 ear

      • Yet the post aggravates the problems you mentioned with the system.

        Most people don't know how the legal system works, yet pounds on it by being unfair etc. Well, the details _are_ complex, but getting a general understanding is not really that hard. What makes it harder for normal people to understand the system is these induhviduals pretending to know about law yet knowing shitte, and spreading misleading information make the general populace more misinformed.

        What you're saying is that "I like this rant!".

  • by Anita Coney (648748) on Wednesday October 08, 2008 @01:38PM (#25302317) Homepage

    "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.

    • Re: (Score:3, Informative)

      by StevenMaurer (115071)

      Not quite. It's even more restrictive than that.
      Perjury is lying under oath about things that is material (i.e. important) to the case.

      The reason for this is simple. If there wasn't a rule like this, every court case about a fender-bender auto accident would begin with: "have you ever cheated on your spouse?". With wide-eyed hubby/wifey in the front row, the inclination to lie would be overwhelming, and court cases would be lost in the weeds over long ago affairs.

      Insofar as the perjury charge here, how

  • The entire quote at the top of this article seems ludicrous. Yes we all think spammers are scum, but this article is a waste of space. These days just about anyone who thinks they can get away with it will lie under oath when it suits them.
  • Your experience with judges just reinforces Sturgeon's Law. That's the reason I oppose a death penalty - it's not a matter of deservedness.

  • It seems to me that Mr.Haselton has admirable goals, but arguing with judges about your improper legal procedure isn't going to work. Does he need to go to law school, hire a real lawyer, or what? Surely somebody here is a lawyer and can explain how Haselton (and others of us who might be so inclined) ought to go about suing spammers?

    • Re: (Score:3, Insightful)

      by pluther (647209)

      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 "Un

  • by DaveV1.0 (203135)

    You had me right up until

    In fact, I don't think all perjurers should be prosecuted -- Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all.

    That is when you blew it. All perjurers should be prosecuted. That Clinton and Kilpatrick were covering up extra-marital affairs is irrelevant.

    The two biggest problems with the laws today is that there are too many of them and that people wish to pick and choose which laws to enforce when. Either one enforces the law or one doesn't. Either the l

  • What's so bad? (Score:2, Interesting)

    by 1155 (538047)

    So this is a serious question. What's so bad about spamming that everyone hates it?

    • Re: (Score:3, Insightful)

      by Valdrax (32670)

      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.

      1. It's selfish. It's a stranger putting their greed over the cleanliness of your private communication space.
      2. It's unaccountable, largely. Unlike someone pitching something to you in person or over the phone, the spammer doesn't have to suffer (and thus pretend to care) your irritation at them.
      3. It's often maliciously deceptive. Much of spam includes illegal or fraudulent products, trojan horses
  • by swb (14022) on Wednesday October 08, 2008 @04:41PM (#25305263)

    The article's author talks about hosting providers having "secret agreements" with spammers or other complicity. THIS is the leverage needed to hobble spammers.

    Spam is almost *always* a come-on for some fraudulent enterprise (stock schemes, fake/illegal pills, or other outright identity theft or fraud). In order to perpetrate frauds like this on an ongoing basis, you need complicity with: hosting providers, credit card processors, banks, and various other middle men.

    What's needed are RICO prosecutions that demonstrate this complicity so that the *entire chain* can be prosecuted as a criminal enterprise. Once a few spammers and their secret partners go down in a RICO prosecution ($250k fines, 20 pound-me-in-the-ass years in federal prison) you can believe that these businesses operating in the shadows and providing legitimate business support for spammers and their clients will seriously second guess their involvement in this and decide that 20 long years in prison and crippling financial penalties and forfeitures just isn't worth it for whatever pocket change they get from some guy who wants to send spam.

    Spam just doesn't work as a purely underground phenomenon, it requires complicity with the "legitimate" world in order to process payments, send email and so on. If you cut that air supply off or make it much more expensive, you may make the margin small enough that it stops being viable.

    Will it stop everything? Of course not, but it will make what's left far easier to isolate.

"There is nothing new under the sun, but there are lots of old things we don't know yet." -Ambrose Bierce

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