Peacefire Ordered To Pay Spammer $1,450

Amid recent discussion about controversial means of fighting spam (including AOL’s and Hotmail’s “e-mail taxes”), one issue is whether anti-spam laws can provide an effective alternative. With that in mind, one of my recent experiences might shed some light on how such laws actually play out in front of judges.

The short version:

Laws can help, but they need to be pretty airtight, to take into account the fact that judges might be very hostile to people bringing these cases, probably for three reasons:

1. The law requires you to make a quasi-legal argument, and many judges, after trudging through years in law school and decades as a lawyer, resent people walking in off the street and making legal arguments.

2. Many judges don’t use e-mail much and are not likely to understand why spam is a problem and the law is important.
3. They know that if they grant damages in these cases, people are going to keep coming back and filing more of them, since anybody can be a spam plaintiff. So, a good law should be free of “loopholes” that the judge can use to avoid enforcing it. And even that won’t help in cases where the judge says they’re just going to disregard the law because they think it’s poorly thought out, which I’ve seen happen in several cases.

The long version:

On September 9, 2005, I got an e-mail with the subject line “Urgent cancer call.” At that point I freaked out, thinking that a relative was e-mailing to say that someone in my family had cancer. Even thirty seconds later after I figured it out, I still had that sick feeling you get in your stomach when the panic has passed but your body is still reacting to it.

The e-mail was actually an advertisement for an “all natural” drug that the spammer claimed could be used to treat cancer. (Probably for legal reasons, he never actually used the word “cure,” but he included a quote claiming to be from someone whose dog was diagnosed with cancer, and who gave the drug to their dog for three days and had him up and running again.) The e-mail was sent to the non-existent random address “jknopveh@peacefire.org”; a common tactic among spammers is to generate random addresses in hopes of hitting a working one, but in my case I got it because all peacefire.org addresses go to me. The spammer’s phone number was in the e-mail, so I called him pretending to be a customer, and he confirmed that he sent the e-mail and gave me his address (here in Washington State) to send him a check. So I sued him under Washington State’s anti-spam law, which prohibits spam with a “misleading subject line.”

On October 27th 2005, I was surprised to see the spammer actually showed up in court. (If you were selling cancer cures by sending emails to randomly generated addresses, and someone sued you, wouldn’t you just cut your losses instead of appearing before a judge?) But the judge hearing the case was Peter Nault, whose opinion of anti-spam cases he summarized in one case that I had brought in 2003:

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.
[...]
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. [An MP3 of this here]

(Not to pick on Judge Nault in particular. Having done this dozens of times, I can assure you that many judges feel exactly the same way; Judge Nault is just one of the few who admit it. And he at least said he would follow the law in that instance. I’ve also had judges who said, flat-out, that they disagreed with the law so they were just going to toss the case.)

Anyway, back to 2005. The spammer admitted that he sent the mail, but said that he sent it to announce a promotional conference call that he would be having the next day to discuss the anti-cancer drug - hence his use of the word “Urgent.” Judge Nault agreed and ruled that the subject line was not misleading and dismissed the case. This is the loophole: the Washington law prohibits subject lines that are “misleading,” but there is no legal definition of “misleading,” so a judge can call anything they want to “not misleading.”

I appealed, arguing that whether or not the use of a phrase like “Urgent cancer call” was misleading, was whether the *recipient* would really think it was urgent, not whether the *sender* thinks it’s urgent - probably all spammers in the world would “urgently” like you to read their ads! The spammer’s lawyer submitted a rebuttal, still not denying that he sent the spam, although they indignantly objected to me calling him a “pill spammer” because the drug was actually in liquid form.

The appeal was assigned to Judge Palmer Robinson, who never met with the parties but reviewed the case and on January 3rd, sent out a letter with a one-line ruling on the nature of the subject line:

“The information in the subject line was not false or misleading.”

and ordered me to pay the spammer’s lawyers $1,450.

It turns out that Palmer Robinson was the same judge who originally ruled back in 2000 that the Washington anti-spam act was unconstitutional, but the Attorney General appealed to the state Supreme Court and got Judge Robinson’s ruling reversed. Having first gone on record believing the law was unconstitutional, and then having been unanimously overturned by the state Supreme Court in a very high-profile case, Judge Robinson was probably not the most objective judge to hear an anti-spam case anyway. But she did, and said the subject was not misleading.

Is this what most judges would have said? In my own informal survey of six different lawyers, all of them said they would have considered the subject misleading. Of course, those were *my* lawyers, but still, the job of your lawyer is not to be your yes-man and agree with you on everything; if that’s what they said, then that’s what they really thought. So I also believe the lawyers when they said I was pretty much railroaded by the judges.

Now about that $1,450. That was less than what the spammers’ lawyers had asked for, but didn’t correspond to any sub-set of fees they had requested, or any other amount in the case. So I filed a “Motion for Clarification” asking

1. Did the $1,450 include $200 for something called the “prevailing party fee?”

2. where did the $1,450 number come from?

The judge mailed out a one-line ruling to both parties saying “The $200 prevailing party fee is included in the $1,450 award,” but ignoring my other question. I called the clerk and asked them if there was anything in the case file to indicate where the number came from; she said that I had to file a motion to ask the judge that. I pointed out that I already did that and the judge hadn’t answered. She put me on hold for a long pause and then came back and said “The judge said she determined that that was a fair amount.”

Hmm. In other words, Judge Robinson did basically the same thing as people who cheat on their tax returns, which is that if you put down a number like $1,500 or $2,000, the IRS knows you just made it up, but if you put a number like $1,450, it looks like it actually means something.

Surprised she didn’t go all the way with it and pick an amount like $1,456. Or even $1,456.29! No, that would look silly.

[Bennett Haselton of Peacefire.org]