Judge Jorgensen was the judge in the only case where I had ever managed to catch a spammer in a "sting operation" on tape, and confront them in court. I was hoping for some Perry-Mason-type dramatic confrontation where the guilty party was crucified by their own contradictions, but unfortunately at the time of the hearing Judge Jorgensen appeared to be nursing a grudge for something she said in an earlier case that made her look silly, which she probably still blamed me for.
For the "sting operation" case, after getting spammed by Joe Spies's company "FullServicesOnline.com" in June 2003, I called him pretending to be a potential client and made a (legal) tape-recording of him offering to take spam orders over the phone. (Of course I never paid him to send any actual spam, I just made the call to get proof that he was in the business.) Then when I sued him and cross-examined him in court about sending the original spam (and he still didn't know I was the guy from the phone call), he said "I don't have the capabilities", and in response to me asking "You don't accept those orders over the phone, and have people send you money" he said "No," all while Judge Jorgensen was interrupting me and reprimanding me between roughly every other sentence (the full transcript of the hearing is here).
Then I revealed the tape-recorded evidence, in which Joe Spies described the spam operations, saying "Well, I would blast out 5 million for $500", "It's a United-States-based company but they pump everything through China and then it comes back to the United States" and "So as long as you remove them off your list and don't email them again, thereís really nothing they can do." (The full transcript of the call is here.)
After I gave Judge Jorgensen the tape and the transcript of the phone call, she read it for a few moments and responded:
So tell me why this isn't entrapment, this transcript? Where you call alleging to be a third person, and then basically solicit information to get him to -- He would not have -- To get him on tape saying he was accepting -- So, tell me why the court should consider that.(If this sounds bizarre, it should -- the legal definition of entrapment is getting someone to engage in an act they otherwise would not have committed, and then arresting or suing them for it; it does not apply if someone has already done something to you, and you just talk to them about it.) For a judge to be given evidence that one of the parties in a lawsuit lied under oath, and then haranguing the other party for collecting that evidence, might sound even more bizarre, so it's necessary to go all the way back to the beginning, to the court case that apparently set up Judge Jorgensen's grudge against me:
On February 10, 2003, I brought Small Claims case Y21116 against Taxpayers for R-51 for calling my phone number right before election day, using a machine that played a pre-recorded message telling people to vote for Proposition R-51. I sued Taxpayers for R-51 for $500 under the Telephone Consumer Protection Act of 1996, which prohibits non-profits from making pre-recorded phone calls without a return phone number. Judge Jorgensen dismissed the case saying that because the TCPA was a federal law, the suit had to be brought in federal court. In court, I read an excerpt from the law which I thought made it clear that you could sue in state court (which includes Small Claims), but Judge Jorgensen said no, I was mistaken, I had to sue in federal court.
The excerpt from the TCPA which I read, and which describes how individuals can sue for violations, states:
Section (c)(5):After I read that out loud in court, I got the impression that Judge Jorgensen was extremely irritated, since the room was still filled with people waiting for her to hear their cases, and all of them heard me read that the law said "state court" and not "federal court". I later also found out that federal court will only hear lawsuits for amounts of $75,000 or more, so the idea that you could only sue for TCPA violations in federal court was completely wrong. (I tried to order an audio recording of that court hearing, but the court staff told me that the recording equipment wasn't started, so no recording from that day exists.)
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State...
Anyway, that was the only case of mine that was heard by Judge Jorgensen prior to my "sting operation" case against Joe Spies and FullServicesOnline.com.
For conducting "sting operations" against spammers, I had a phone number set up so that if you call the number, a recording says "Thank you for calling [company name]. Due to company policy, your call may be monitored or recorded. If you know your party's extension please enter it now." (I'm not putting the "company name" on this page, since it's a completely made-up company, and I don't want spammers who call that number to type the company name into a search engine and find this page!) Then when the caller enters the extension, it rings to my home telephone with a special ring, so that I can then answer the phone and tape the phone call. This is necessary because in Washington, unlike some other states, you may not tape a telephone call unless all parties to the phone call have given consent to the call being recorded.
After I got spammed by FullServicesOnline.com on June 7, 2003, I did a WHOIS lookup on the FullServicesOnline.com domain and called the number listed in the registration, (360) 666-0563. (FullServicesOnline.com is now registered to a new owner and the new listing no longer shows this number.) I spoke to "John", who said that "Joe" would be giving me a call back. Joe Spies called me back the next day at the "sting operation" phone number, and that was the call that I taped, the highlights of which included these statements:
JOE SPIES: OK, what kind of leads are you looking for? General Internet? General Internet are the cheapest ones.
BENNETT HASELTON: OK, how much are those?
JOE SPIES: Well, I would blast out 5 million for $500.
BENNETT HASELTON: Do you have anything smaller?
JOE SPIES: Yeah, I could mail out like 2 million, $100 per million.
BENNETT HASELTON: 100 for a million? OK. What about the cost of the setup and hosting?
JOE SPIES: OK... Hosting would be $1,000 a month, and a mailer is $500 a month.
BENNETT HASELTON: So $1,000 for the hosting and... is it because of the bulletproof hosting that makes it so expensive? [Note -- "bulletproof hosting" is Web hosting where your host agrees not to kick you off in response to complaints about spamming]
JOE SPIES: Yeah.
BENNETT HASELTON: Because the anti-spam problems?
JOE SPIES: Bulletproof hosts cost ten thousand dollars.
BENNETT HASELTON: OK... For a dedicated server, you mean?
JOE SPIES: Yep. Ten grand a month.
BENNETT HASELTON: So this is what your host charges you for...
JOE SPIES: They charge me ten thousand dollars a month.
BENNETT HASELTON: The company in China?
JOE SPIES: No, itís a United-States-based company but they pump everything through China and then it comes back to the United States.
The full transcript of my taped conversation with Joe Spies is here in Word format.
The hearing took place on September 24, 2003 before Judge Jorgensen. The full transcript of the FullServicesOnline.com hearing is here in Word format (I have an MP3 of the hearing, but it's very large, so email me if you want that URL.)
First, I asked Joe Spies if he took orders for spamming over the phone. I was really hoping to get him caught lying under oath, and at first it sounded like he was saying that he took orders from potential spam clients on the phone and referred them to other people, and I was worried that after I revealed the tape-recorded evidence later, he'd try to claim it didn't contradict anything he had said. So I asked him point-blank if he did the things which he had done in our recorded phone call, and he said No:
BENNETT HASELTON: So you do not take orders for someone who calls and says I want to pay a hundred dollars for a million emails... you don't take those orders.
JOE SPIES: I've had people call me and I relay the message
BENNETT HASELTON: You refer them.
JOE SPIES: I refer them, and I usually get a kickback.
BENNETT HASELTON: OK, but you don't accept those over the phone, and have people send you money.
JOE SPIES: No, because then I'd have to... yeah, I don't have time for them.
BENNETT HASELTON: And you don't do the web hosting either, for...?
JOE SPIES: No.
Then I showed Joe Spies and Judge Jorgensen the tape I had made of the phone call between me and Joe Spies on June 11, 2003, and described the portions of the conversation in which Joe Spies talked about where to send him money for sending 5 million emails, and explained how I had set up the second phone number so that when someone calls it, they hear the recording saying "Your call may be monitored or recorded". Judge Jorgensen didn't bat an eye at the revelation that Joe Spies had lied under oath; rather, since I said that the phone doesn't ring on my end until the caller has already heard the disclaimer, Judge Jorgensen seized on that to argue that it was "not a complete transcript" and that I couldn't really prove Joe Spies had heard the disclaimer at the beginning:
BENNETT HASELTON: So I called, and then he called me back.
JUDGE JORGENSEN: And, when he called you back, may I assume that the tape also includes the disclaimer?
BENNETT HASELTON: No, my phone doesn't ring until after that's already been played.
JUDGE JORGENSEN: So you can't prove to me that the disclaimer is on there? Or that Mr. Spies heard it?
JOE SPIES: Or that it was even me.
JUDGE JORGENSEN: Pardon?
JOE SPIES: Or that it was even me. I don't remember calling him back.
BENNETT HASELTON: I have the voice, and it says, you know, I'm Joe Spies, it's the same voice.
JOE SPIES: That's my... that's my voice mail.
BENNETT HASELTON: No, this is the live conversation.
JUDGE JORGENSEN: And, do you have a copy of the transcript?
[goes and hands it to her]
JUDGE JORGENSEN: So it's not a complete transcript?
BENNETT HASELTON: I started taping right after the conversation started. And it just--
JUDGE JORGENSEN: So what's it called? You didn't say, this is so-and-so and who are you?
BENNETT HASELTON: Uh, that was Joe Spies. Later in the call, we talked, and he said, well in particular he said where to send the money. I said, OK I'm interested, what if I want to pay for these services, where should I send the money? But, I can go over the parts that are circled... those are the parts of the argument-- Would you like to read through it first or do you want me to go over what's--
JUDGE JORGENSEN: No, I can read, sir.
[rather awkward silence]
After reading parts of the transcript, Judge Jorgensen continued:
So tell me why this isn't entrapment, this transcript? Where you call alleging to be a third person, and then basically solicit information to get him to -- He would not have -- To get him on tape saying he was accepting -- So, tell me why the court should consider that.
After Joe Spies heard Judge Jorgensen say "So you can't prove to me that the disclaimer is on there?", almost as if taking a hint from her, he claimed he had never heard the disclaimer on the phone call, and Judge Jorgensen ruled that I couldn't prove otherwise:
JUDGE JORGENSEN: And what do you have that can provide me with verification that there was that disclaimer?
BENNETT HASELTON: Um... If, well you can call the number--
JUDGE JORGENSEN: I don't do that, sir. I don't call numbers. Go ahead. Anything else?
At that point, I figured the trial was pretty much a wash. In theory, if you get caught lying under oath, you can be arrested; now, before walking in, I didn't seriously think that Joe Spies would be going to jail if I caught up lying, but I thought I would at least win the case.
After I lost, I filed a motion to reconsider by mail on October 6, 2003 (which almost never works, since you're basically asking the judge to change their own mind). In my motion I argued that:
A month later I got a letter with a one-line update from the court saying that Judge Jorgensen had denied the motion, and I never saw her or heard from her again.