Arguments that just don't cut it (Part II)

Here's the second installment of the bad arguments collection. It's not that they are entirely implausible, but just that courts are not likely to believe and use as evidence, for example, that dogs can sense the act of wiretapping.

• Plaintiff claimed he knew that HP was checking his voicemail in violation of the Wiretap Act when his "German shepherd, Duke, had his ears perked and was staring wildly at Plaintiff's Motorola router." Dunahoo v. Hewlett-Packard Co., 2012 U.S. Dist. LEXIS 7717 (S.D.N.Y. 2012).
• Eight months after defendant's house was foreclosed upon, the new owner found his collection of child pornography in the flue of the chimney. The defendant argued that he had an expectation of privacy in the disks as they were not abandoned. The judge held, "It is unclear to me exactly when defendant planned to try to retrieve these disks, and it is ridiculous to think that he had any privacy interest in these disks which were sitting in someone else's house for this length of time." United States v. Larson, 2011 U.S. Dist. LEXIS 139566 (W.D. Mo. 2011).
• Plaintiff argued that they cannot be required to disclose data from their social media accounts to the defendants during discovery because it would violate the Stored Communications Act. Unfortunately for the plaintiff, the SCA only prohibits unauthorized access and does not apply to the user himself. In re Air Crash near Clarence Ctr., 2011 U.S. Dist. LEXIS 146551 (W.D.N.Y. 2011).

Click here for Part I.

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Arguments that just don't cut it

There are arguments in every case that won't hold up, but there are others that are downright laughable. Here are a few of those not worthy of an entire post. (I'm paraphrasing these, of course.)

• "It wasn't me that downloaded the child pornography. It was my Internet Service Provider (ISP). You should have suspected them from the beginning." (United States v. Larson, 2011 WL 3837540 (W.D. Miss. 2011))
• "Since I purchased someone else's passport and Social Security card, it wasn't “without lawful authority” for me to try to get a US passport with it." (U.S. v. Ozuna-Cabrera, 663 F.3d 496 (1st. Cir. 2011))
• "You can't search my home for child pornography just because my IP address shared it. Why? Because someone could have connected to my wireless network." (United States v. Gillman, 432 Fed.Appx. 513 (6th Cir. 2002))
• "Someone guessed my password and accessed my computer, and it's unfortunate that I can't prove it because the security records just happen to be missing for the day in question." (United States v. Winkler, 639 F.3d 692 (5th Cir. 2011))
• "I didn't distribute child pornography because I only e-mailed it from my phone to my personal e-mail account." Wait... what? No, the court actually bought this argument despite the statute defining distribution to be "any act ... related to the transfer of material involving the sexual exploitation of a minor." (United States v. Merrill, 578 F.Supp.2d 1144 (N.D. Iowa 2008))

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