In the Most Cowardly Possible Decision, Ninth Circuit Upholds Gartenlaub Conviction

The Ninth Circuit just released an unsigned opinion in Keith Gartenlaub’s case; in a non-precedental opinion, they upheld his conviction.

As a reminder, Gartenlaub was an engineer at Boeing. During a period when there were suspected Chinese breaches of Boeing at other locations, an FBI Agent in the LA area decided that there must be someone breaching Boeing at the local facility. He set out to find a suspect and focused on Gartenlaub (apparently) because he had access to relevant files and a Chinese-America wife. It appears that the FBI used back door searches on Section 702 material in their early investigation of Gartenlaub. They also moved back and forth from criminal warrants to FISA warrants. Using a FISA physical search warrant, the FBI searched his home and imaged his hard drives. Searches of those hard drives found no evidence he was a spy for China, as they had claimed; instead, they found child porn that had not been accessed in a decade. The government used that to obtain yet another warrant on Gartenlaub, parallel constructing the child porn for use at trial, all in an attempt to get him to agree to spy on his Chinese relatives. Instead, he went to trial and was found guilty of knowingly possessing child porn.

He appealed his conviction both because the government presented no evidence he had actually accessed this child porn since it had been loaded onto his computer, and because the government used a FISA order to find the porn that they then used to search him (and also used to legitimize the Tor exception, which permits the NSA to target location-obscured facilities known to be used by Americans, so long as they sift out the non-criminal US person content after the fact).

The Ninth Circuit sat on this decision until Gartenlaub was out of prison

I say this opinion was cowardly for a number of reasons (aside from the court taking nine months to release a thin, unsigned opinion). Part of the cowardice is the timing. The court entered this judgment on September 17, two weeks ago.

They just released it today.

Today also happens to be the day that Gartenlaub moved to a halfway house. Perhaps the court hoped by releasing it after he was released from prison, it would moot any further challenge.

Even the Carter Page precedent didn’t win Gartenlaub a review of his FISA application

While Gartenlaub challenged the sufficiency of the evidence that he knowingly possessed the child porn (which the Ninth also upheld), the key to this challenge was whether using child porn the government had found using the broader search protocols available under FISA presented a Fourth Amendment challenge, particularly in light of the US v. Comprehensive Drug Testing precedent on plain view doctrine in the circuit.

The Ninth avoided dealing with this issue in two ways. First, even though Carter Page has established the precedent that defendants — indeed, the whole world! — can see FISA applications, the court conducted its own review, and found the FBI had presented probable cause that Gartenlaub (or perhaps his wife?) was an agent of China “when the FISA order was issued.”

Based upon our independent review of the classified record evidence, we conclude that the FISA warrant was supported by probable cause. The FISA application and supporting materials demonstrated probable cause to believe that Gartenlaub was an agent of a foreign power when the FISA order was issued.

I’m really curious about that language, “when the order was issued,” as the two streams of collection the FBI was using leaves open the possibility that FBI had learned that he wasn’t a spy by the time they did the search.

Based on their review of the FISA application the Ninth decided that such a review was not necessary or even useful to determine the legality of the search.

We have conducted an in camera review of the underlying FISA materials. We conclude that the disclosure of the FISA materials to Gartenlaub was not “necessary to make an accurate determination of the legality of the search.” 50 U.S.C. § 1825(g); see also United States v. Ott, 827 F.2d 473, 476–77 (9th Cir. 1987) (finding “no indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence information, or any other factors that would indicate a need for disclosure” (internal quotation marks omitted)). In point of fact, disclosure was not necessary even under a less rigorous standard than that proposed by the government.

Of course, given the likelihood that the government used 702 data to obtain this FISA order (and the FBI’s use of shoddy public reporting), that’s not all that comforting.

The Ninth punts on the Fourth Amendment issue

Having disposed of the sufficiency of the evidence and the probable cause challenges, the Ninth then addressed the key issue that any non-cowardly opinion would have dealt with: whether using a FISA order, instead of a criminal warrant, to get the ability to search more extensively on a person’s life constitutes a Fourth Amendment violation (this is particularly important in Gartenlaub’s case, because he was suspected of stealing non-videos, so a criminal search wouldn’t have had any reason to search for videos). The court admits that this is a really troubling issue.

The idea that the government can decide that someone is a foreign agent based on secret information; on that basis obtain computers containing “[t]he sum of [that] individual’s private life,” Riley v. California, 134 S. Ct. 2473, 2489 (2014); and then prosecute that individual for completely unrelated crimes discovered as a result of rummaging through that computer comes perilously close to the exact abuses against which the Fourth Amendment was designed to protect.

But they treat this question as a review for plain error (in part because Gartenlaub’s original attorney, who made some other key errors at the District level, didn’t raise the Fourth Amendment issue).

Plain error review is the appropriate standard because Gartenlaub did not assert the Fourth Amendment argument predicated on alleged misuse of the FISA warrant before the district court.

Note, significant evidence about how the government abused the FISA process to get at the more expansive search authority under FISA became public after Gartenlaub submitted his appeal.

In any case, having deemed this a plain error review rather than a Fourth Amendment one, the court basically said there’s no standard set for the use of plain view in national security cases, so the District judge could not have plainly erred.

No controlling authority dictates the conclusion that the government’s Foreign Intelligence Surveillance Act (“FISA”) search and subsequent use of FISA-derived materials in a non-national security prosecution violates the Fourth Amendment, such that the district court’s failure to follow it was plain error. See United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011), as amended (Nov. 16, 2011). Our decision in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc), abrogation recognized by Demaree v. Pederson, 887 F.3d 870 (9th Cir. 2018) (per curiam), is inapposite; it did not decide the question presented by this case and, in fact, addressed no national security concerns particular to the FISA context.

This is, in other words, a punt — a punt that admits such unrestricted searches are a problem, but manages to avoid ruling for this case, a case that itself served as precedent at the FISA court for a whole slew of even more problematic national security searches.

19 replies
  1. pseudonymous in nc says:

    The legal equivalent of ¯\_(ツ)_/¯ . Makes you wonder exactly what kind of case would actually make it to the point where SCOTUS has to address the Fourth Amendment implications of nat-sec searches.

  2. Andy says:

    Agent upset the engineer would not falsely confess to being a spy. There is a police saying about suspects that “if I can’t have the one I want, I want the one I have” regardless of guilt. Obvious fruit from a poisonous tree.

  3. bloopie2 says:

    Could they have punted in the opposite direction also? Reversed, simply saying that the search was unreasonable per the Fourth Amendment. Who’s going to call out a Circuit Court on that?

  4. Rapier says:

    I think there are two things in play here

    First is the tradition of  all courts deference to national security agencies and the military.

    Second is child porn, which besides things horrible includes pictures of 17 year old  breasts, which are almost surely in view on ever porn site now.  The latter however is not what comes to mind and  nobody, no judge, wants to be subject to criticism that they are ‘soft’ on child porn.

  5. Bobster33 says:

    Ever since the late 1990’s the appeal and supreme courts have been deciding more and more complex technological cases with less and less understanding of the issues. I can remember a case in 2005 about texting, which suggested that the Justices new nothing about the technology. This is going to get worse as Justices get older. We need term limits for the Courts (15 years).

    • orionATL says:

      there are two good points here: term limits for justices and the need for much more sophisticated judicial understanding of technology. with respect to justices’ technology deficits, lawclerks alone are not going to to be able to dent it.

      in addition to texting, metadata, and net neutrality, another example is the difficulty justices have had in understanding computer-and-math evaluations of complex computer-program gerrymandering used by republicans to effectively corral democrat voters and thereby reduce the number of democratics elected compared to previous “hand” gerrymanders.

      • bmaz says:

        If Kim Wardlaw and Ron Gould cannot meet your and “Bobster’s” mark for decent judges, you might need to rethink where you are at.

        • orionATL says:

          it would be unkind to say that your comment was off point.

          my point was simple and unassailable. there are ~180 federal appellate judgeships; if you know two of those to have uncommon background to deal with highly technical matters, fine. however, a common criticism these days is that most judges at any level do not have the training to evaluate certain technical problems such as critiques of computer-generated gerrymandering. i cannot imagine that this problem does not extend to other complex technical problems that intersect with law. this is in no way a reflection on the intellect of the judges, rather on their training.

          judge wardlaw sounds like an entirely admirable judge:

          but i was not talking about those admirable judicial qualities such as good judgement, insightfulness, empathy, or knowledge of law. i was talking about specialized knowledge. very, very few judges are sherlock holmes in their breadth of knowledge; pursuing a profession in our modern society almost forbids that.

          i suspect that in the near future, state as well as federal judges, at least at the appellate level, are going to want to have to have a small staff of technically knowledgeable people who can find for them the resources they need to think thru intensely technical problems.

          • orionATL says:

            as for “term limits”, there are 320+ million americans. quite a number go to law school. i cannot see any reason at all why we should not like to have a rotation of intellects in a government body like the supreme court.

            already we have had far too many conservative catholics on a supreme court in recent decades. already we have had far too many graduates of harvard and of yale. as a class, these justices should be considered as twisted as one of those eccentric looking severely in-bred breeds of dog.

            don’t the laws schools of and in the 50 states have more than sufficient graduates with the intellectual and personal variety and vitality we need in judges than these two breeding pens for cautious and unimaginative law?

            chief justice earl warren merely went to the u.c. berkley law school, but turned out to be probably the greatest jurist, in terms of bringing change to american society, of any in the 20th century.

            i’d be very happy to see supreme court judges leave after 19 yrs (as has been proposed), and happy too to see few to no harvard/yale appointees for many years. this fixation on those two schools reeks of in-breediing.

            proud member of the IANAL party :)

            (but i am a god damned citizen who counts)

      • bmaz says:

        I dunno, maybe. It is an entirely predictable opinion, even if entirely disappointing. Was a lot kind of summarily glossed over? Yes. But, given the standard on appeal, it is predictable. The only thing cowardly I can maybe see is that it was designated “not for publication”. And there may actually be a silver lining in that cloud in that it will not be dredged up and cited as much as it might otherwise would have been (See circuit rule 36.3)

  6. Trip says:

    OT/ For Marcy:

    Mueller ‘downsizing’ with departure of 2 prosecutors
    ‘I think they wouldn’t be letting people go unless they’re winding down,’ said a Washington defense attorney working on the Russia probe.
    Brandon Van Grack and Kyle Freeny — government lawyers with key roles in bringing the case against the former Trump campaign chairman over tax evasion, bank fraud and failure to register as a foreign agent for his lobbying work in Ukraine — are going back to their prior posts at the Justice Department, according to Mueller spokesman Peter Carr.

    What do you make of this? Maddow described one as a money-laundering specialist. I guess there’s no there there with Trump and Russians’ money? Please say this is wrong.

  7. Michael Keenan says:

    Solar Observatory closed 8 days by FBI. Reason was because Janitor was found to have child porn. Yet pretty much MIA for nomination hearing.

  8. J R in WV says:

    What’s a 702, besides the number between 701 and 703? It seems like an important thing in your discussion, but I don’t recall hearing it before, IANAL, just interested (and terrified by) in the justice system.

    • Rayne says:

      See the Foreign Intelligence section of Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 for an overview.

      Here’s Marcy’s early overview from 2013.

      While on the face of it Section 702 is about intelligence collection on overseas targets, it has been an ongoing battle against its use to surveil Americans in the U.S.

      Use the Search tool in upper right of this site and type in “Section 702” for most of the rest of related work Marcy has done on this topic.

Comments are closed.