I am now pursing the anti-spam lawsuits on four separate fronts:
Figuring out how much a person could earn, on average, from filing these cases. Even though I made some procedural errors the first few times I went through the process of suing a spammer in Washington State, I think I have the procedure figured out now, so eventually I will get settled into a "routine" where I go to court about every other week to testify in however many anti-spam lawsuits I've brought on that day. At that point, I can figure out how many hours I'm spending on these lawsuits every week on average, what proportion of the time I'm likely to win, and how much I'm likely to collect from the defendants when I do win. Then I can figure out what the average hourly rate is that a person could earn by doing this -- not for myself, but so that I can recommend that other people take action as well. Martin Palmer, who has been suing spammers over the past three years since the law was first passed, estimates that he's averaged $175 per hour in winnings. I'm hoping that if the average hourly rate that a person can make from suing spammers is anywhere close to that amount, then so many spam victims in Washington will start using the law, that it will seriously hurt the spam industry. However, don't quit your day job yet; for reasons given below, if you're only interested in bringing these lawsuits to make money, then -- there's nothing wrong with that, but I'd recommend waiting until there have been some higher court rulings on how to interpret the law.
Getting a ruling at the Appeals Court level or higher, to bring consistency to the decisions made by lower courts. For the time being, one major obstacle to a person bringing an anti-spam lawsuit in small claims court is that many judges interpret the law differently. Unlike regular court decisions, small claims court rulings have no "precedential value", so a judge does not have to follow the same logic that a different small claims judge used in another case. So far, these are the issues that I've gotten differing opinions about from different judges:
For a newcomer who just started filing anti-spam lawsuits, the most discouraging thing about the process would probably be the amount of contradictory information available from different sources. So what I'm hoping to do is take a case that we lose, for example, because a judge rules that you cannot sue in small claims court unless you've lost money. Then if we appeal that case, the appeal is heard in Superior Court, which is at a higher level than small claims court. If we lose at that level, Superior Court decisions can be appealed to an Appeals Court, and decisions made by the Appeals Court have "precedent" that is binding on courts in their jurisdiction (including small claims courts), and that particular issue won't be a problem any more for people suing in small claims.
The only problem is that Superior Court decisions don't have precedential value -- so if we appeal to the Superior Court and win, then we've won that particular case, but we haven't established any precedent that would be helpful to other people filing similar lawsuits. Ironically, what we'll want to do eventually is lose a small claims case, appeal it to the Superior Court, lose again, and finally appeal it to the Appeals Court and win.
Nonetheless, this has to happen, if it's ever going to be easy for Washington State residents to bring lawsuits against spammers without having to encounter a lot of contradictory rulings. So this is one of the long-term goals of Peacefire's ongoing anti-spam lawsuits.
Suing multiple spammers in Superior Court, when they cannot be identified with enough certainty to sue them in small claims court. For the majority of the spam that I get, it is not possible to identify the spammer just from the content of the email. Even the follow-up contact information sometimes leads nowhere. Usually, however, it's possible to track down the source of the spam to some point where you could find out who the spammer is, if you had access to records being kept by some third-party company. For example, you can see the IP address that the spammer was using while they were connected to the Internet, and the ISP which controls that address would know who was using it on a given date and time. Or the spammer uses an IBill account to collect payment, and IBill knows where payments under that account are mailed to.
In a lawsuit brought in Small Claims Court, you normally don't have the right to make companies turn over this information (called "discovery"). And the companies generally won't turn it over without a court order. (In general, this is a good thing -- you wouldn't want a business to turn over your personal information every time someone accused you of wrongdoing without going through the proper legal channels.)
So, we are currently preparing a lawsuit in Superior Court, to be filed against 50 spammer defendants that we could not sufficiently identify to sue them in Small Claims. Once the lawsuit has been filed, we can obtain court orders to determine the spammers' identities. This requires more patience and more money than filing a case in small claims court, but if we end up making the money back and then some, this will hopefully become a common practice among people and groups that are serious about suing spammers.
If you are not a Washington State resident, I don't know anything about the anti-spam laws in other states, but SpamCon.org is a great source of information.
If you are a Washington State resident and you want to sue a spammer in Small Claims Court, I would recommend waiting until there have been some higher court rulings to clarify how small claims courts are supposed to interpret the law. There are currently only a handful of "trail blazers" -- including me, Martin Palmer, Bruce Miller, Joel Hodgell, and Ben Livingston -- filing anti-spam lawsuits without the benefit of a consistent set of past court rulings. If you want to be one of the "trail blazers", then by all means, join in -- however, this is only if you want to sue spammers as a matter of principle (to help fight spam, and to help establish a set of consistent court rulings that people can use in the future). You probably won't earn enough money just to pay for your time. (Martin Palmer said he averaged $175 per hour, but most people have averaged much less, so far.)
Also, I would recommend not getting involved in an anti-spam lawsuit without a certain amount of "Internet savvy". If you're not familiar with the difference between a dynamic and a static IP address, or with "getting WHOIS information for a domain name", or viewing the "full headers" of an email message, then the technicalities of suing a spammer would probably be too difficult to navigate.
If you still want to sue a spammer for $500 in Small Claims Court under Washington's anti-spam law, this is what I have found to be the conditions for an "ideal anti-spam lawsuit":
The defendant is a corporation, and you know the state where they are incorporated. (Usually, the state where they're incorporated is either the state where they're located, or Delaware -- because Delaware makes it easy to incorporate there.) Legally, a company cannot use "Corporation" or "Inc." or "Incorporated" anywhere, unless they really are a corporation -- but that won't tell you where they're incorporated, or even if they're incorporated in the U.S. Unfortunately, with most spam, you can't even find out the name of the company that sent it, much less whether they're a corporation.
You can easily prove one of the following (one of these conditions must be satisfied to show that the spam violated the law):
Unfortunately, the first two criteria rule out a lot of spam. Porn spams from blatantly faked addresses like "email@example.com" often give no clue as to the identity of the company that sent it. Even if the spam has a link to a porn site, the site may not contain the company's legal name. And when spam does come from a company that is easily identifiable, often the return address will be real -- which means it would be much harder (thought not always impossible) to show that the spam violated Washington's anti-spam law.
Some things to keep in mind:
If you still think you have a good case, you may be ready to bring a lawsuit. You can get comfortable with how small claims court works by sitting in on some small claims hearings at your local District Court. There are books about how to navigate small claims court -- Everybody's Guide to Small Claims Court, from Nolo Press, is extremely thorough and readable -- but most of the information in those books does not apply to a situation where you're suing a party who won't show up, and where the hardest part of the case is proving that you identified and served them properly.
If you're ready to sue, you still need to make sure that you can properly serve the lawsuit papers on the defendant, and that you will have "proof of service" when you appear in court. If you think you know the state where they're incorporated, find the name and address of the corporation's registered agent in that state. The registered agent is usually a third party, like a law firm or an accountant, that acts as a company's "representative" for matters such as receiving lawsuit papers. To find the registered agent, first find the Secretary of State for that state (use http://www.pac-info.com/ -- in almost every state, the Secretary of State has a Web page). If there is a corporations database lookup form on their site, use that to find the registered agent. Otherwise, they should have a number that you can call. When you file a lawsuit, you should send the defendant's copy of the lawsuit papers to the corporation's registered agent. If the registered agent is a person, send the papers by "certified mail, with a return receipt, with restricted delivery" (the Post Office will know what to do). If the registered agent is a company, then send the papers by "certified mail with a return receipt" (you can only do restricted delivery to a person, not to a company), and then once you get the receipt back, call the company that acts as the registered agent, and make sure the signature on the receipt is the signature of someone who works there.
It could take anywhere from several days to several weeks for the green postal receipt to come back to your mailbox. When it comes back, save it, since that's your "proof of service". If the letter is returned undelivered, it may be marked undeliverable, or the registered agent may have refused to sign for the letter (this often happens if the registered agent actually works for the company that you're suing -- they're just trying to make it difficult for you). If the registered agent refused to sign, then call the sheriff's department for the county where the defendant (or their registered agent) is located, and find out how the sheriff's office can do "service of process" for you, and how much it will cost. If the mailman tries to make you sign for a piece of restricted-delivery mail, you can say refuse, but I don't think you can refuse if the sheriff shows up to serve papers on you.
In the days leading up to the trial, ask the District Court if they've received a letter from the defendant. The defendant probably isn't planning to appear at the trial, but they may have written a letter to the judge giving their side. That letter will get added to the file for that case, so you can request a copy.
At the actual trial, bring a copy of the spam that you received, the green receipt that shows proof of service on the defendant, a copy of Washington's anti-spam law, and anything else that might help just for the sake of being thorough (such as a printout of the defendant's Web site, if they have one).
Now here's the problem: even if you do everything right, you could still lose. This is because of the ambiguities in how the law is currently being interpreted -- for example, the judge may say that you cannot sue in Small Claims Court unless you've lost money. Then you're out of luck. This is exactly why we're recommending to people that before attempting to sue a spammer in small claims court, they wait until a higher court has issued some clarifying rulings.
I am not a lawyer and nothing on this page should be construed as legal advice. This is simply information that I have collected from my experiences.