[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Keith Gartenlaub Challenges the Destroyed FISA Wall

Keith Gartenlaub is appealing his conviction on possession of child porn to the Supreme Court, based on a FISA challenge. And while any petition for cert before SCOTUS faces long odds, I believe this one is interestingly situated in that its challenge to the plain view doctrine, in conjunction with the use of FISA evidence in a prosecution having nothing to do with national security, may present a way for SCOTUS to reconsider the wall between national security investigations and criminal prosecutions.

As a reminder, the FBI decided to investigation Gartenlaub (at a time when they were making other bone-headed investigative decisions involving Chinese-Americans) because he had access to files the Chinese government was seeking and a naturalized Chinese-American wife.

FBI switched back and forth from criminal to FISA access at least once (and probably twice), and in the process did a physical search of three Gartenlaub hard drives using the more expansive search regime available under FISA, only to then repeat the same search to obtain the same evidence of child porn to use for prosecution.

The government never presented evidence the child porn had been accessed since 2005, and Gartenlaub presented an alternate explanation for how it had gotten on his computer. In fact, the record suggests the FBI didn’t want to prosecute Gartenlaub for child porn; they wanted to flip him, so he would spy on his well-connected in-laws. It didn’t happen and now, even after his release from prison, he’s trying to challenge the genesis of his prosecution from that FISA search.

The reason why the case is interesting is because the FBI was seeking something very specific: materials relating to Boeing’s C-17 program. A criminal forensic search for such materials, conducted under a Rule 41 warrant, would start by turning off the forensic search for items — most notably, videos — that would not return the suspected evidence of crime (which would be engineering documents).

Because of typical games the FBI plays with forensics, this was not established in the District court. But the appeal points to the government’s claims that under FISA they don’t have to use such forensic narrowing to establish that they did not, and, not having done that, found no evidence to support the FISA allegations but instead finding evidence that led to the child porn charges.

In its Opposition Brief before the Ninth Circuit, the government acknowledges that there were no limitations to its secret search of Gartenlaub’s hard drives, saying in a header: “The Government Was Permitted to Search Every File on Defendant’s Computers . . . .”17 And nothing in the record indicates that the government used any standard forensic techniques routinely used to particularize computer searches like: date limitations; targeted key word searches; image recognition scans; taint teams, or other routine, well established techniques to limit a digital search to its target and screen out privileged, confidential, and irrelevant information.

Despite its unlimited search, the FBI found no evidence that Gartenlaub had provided C-17 data to China, or otherwise acted as a spy for China. But the FBI did allegedly find, among the tens of thousands of files on the hard drives, a handful of files containing child pornography. Dropping its fantasy that Gartenlaub was a Chinese spy, the FBI turned to the theory he collected child pornography.

The appeal then argues that using FISA to get to criminal evidence is an end run around criminal procedure, in part because Gartenlaub had no way to challenge the criminal warrant after the evidence had already been found via FISA warrant.

Gartenlaub’s case demonstrates how easy it is to bypass the Constitution’s criminal procedure guarantees by getting a secret FISA search warrant and using it to prosecute regular crimes. And it is impossible for a criminal defendant to challenge a secret FISA warrant because the defendant cannot access any of the information underlying the FISA warrant due to its secrecy. This thwarts a criminal defendant’s Due Process right to test the government’s case in adversarial proceedings. For these reasons alone the Court should grant certiorari to clarify the use of non-responsive FISA evidence in regular criminal proceedings.

Ultimately, one of Gartenlaub’s requests for cert (and most parallel this closely) argues that the government should not be permitted to use FISA warrants unless it submits those FISA warrants for court review.

Gartenlaub’s case is an example of how the government can abuse a national security investigation under FISA to prosecute unrelated non-national security crimes. Because of this risk, the government should not be permitted to use secret national security warrants to prosecute regular crimes if it won’t submit those warrants and supporting materials to investigation and the adversarial process the criminal procedure amendments require. This Court should grant certiorari to analyze and clarify the scope of the 1978 FISA’s encroachment upon the fundamental, centuries old, criminal procedure protections of the Fourth, Fifth, and Sixth Amendments.

On its face, it’s a fairly modest request. And, as the appeal notes, a fairly modest one, given that there is only one other case where FISA is known to be used in a pure criminal case. And the appeal distinguishes this case from the past one, Isa, in a way that appeals directly to the Court’s recent narrowing of digitally-based searches.

The 27 year old FISA case of United States v. Isa appears to be one of the few instances where a prosecutor used the non-responsive fruits of a FISA search for an unrelated regular criminal prosecution.70 Isa upheld the use of a FISA surveillance recording, in a state prosecution, of the surveillance target’s murder of his 16-year-old daughter.71 During the course of the surveillance the murder occurred and was incidentally recorded. Unlike Gartenlaub’s case, the evidence was not obtained via the methodical rummaging over the course of months through the target’s computers.

In other words, on its face, it presents a case where there is no question of standing, where the reach of the questions presented may seem narrow, and on topics that fit nicely with recent court decisions recognizing the greater invasiveness of digital searches.

Except the impact of putting FISA review on the table for a purely criminal case (the appeal raises the Carter Page example) would have significant, probably overdue impact on the complete elimination of the wall between intelligence and criminal investigations after 9/11.

None of that says it will work, of course. But it’s a neat formulation that, if it did, might finally push FISA back towards being closer to what it was first envisioned as.

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12 replies
  1. Bri2k says:

    Very interesting piece and thank you for more coverage of FISA.

    I hate to be that guy, but 2nd paragraph:

    “As a reminder, the FBI decided to investigation Gartenlaub…”

    Thanks again for your outstanding work bringing these issues to light in a way ordinary people can understand.

  2. Wajim says:

    I think I get the general gist of the constitutional/4th amendment/FISA problem here (or maybe I don’t), more or less, but was the alleged “alternate explanation” for child porn a reason to exculpate on the criminal and/or a “back door,” so to speak, to perhaps undo the FISA element? Does this question make sense to any actual lawyers? Inquiring mind wants to know.

  3. fishmanxxx says:

    While I see the constitutional arguments being presented, logic would say that if FISA warrants occasionally elicit unintended criminal investigations, its use should not be discouraged. While arguments can be made that seat belt use, in cars, can kill, but we don’t discourage their effective use.
    As a related aside, there needs to be a way to use testimony, obtained through clandestine means, to expedite criminal prosecutions. The concept of filtering evidence was used recently when data from either Manafort’s or Cohen’s electronic media was vetted for ‘relevance’ to the initial warrant. A similar procedure could provide the substance of classified testimony to be presented in court, while preserving source and method?
    My point is that hard evidence, however it was obtained, is effective in prosecutions and anything that expedites a final legal prosecution, or acquittal, should be used. Nixon, may have gotten away with all we’re it not for the ´tapes’!

    • DMM says:

      Well, no, “logic” wouldn’t dictate a position either way. There’s no form of logic that would yield a normative conclusion like this.

      The experience of the American colonists would, though. The impetus for the 4th Amendment was to prevent government officials from abusing state power by issuing general warrants to, among other things, rummage one’s life in search of something — anything — they could criminally charge.

      • DannyD says:

        Thanks DMM, very well put…
        As we move towards an environment where everything is ‘relevant’ to national security, these types of FISA searches do become a de facto ‘general warrant’ that the American colonists were rightly upset about.

        Fishmanxxx, perhaps your digital metadata in interesting enough to warrant a FISA ‘sneak-and-peek’ at the going’s on in your house? Once into the claws of LE, it’s very difficult for even an innocent man to make it out with the shirt still on his back.

    • Eureka says:

      Someone’s going to have to do a proper civil liberties course on this comment. It won’t be me, but here are a couple-few things to consider:

      The post addresses some of the due process issues with your first statement. The 2nd to last sentence on “hard evidence- however it was obtained” begets more of those issues.

      I know your comment cites mostly people who’ve pled guilty to crimes. But imagine any citizen and any crime- or more to the point, anyone who wants to find anyone guilty of any crime. There’s a “Crime-a-Day” twitter account that could tweet until global temps rise ten degrees and it won’t have gotten through All the Laws.

      Adding: Multiply all that by (roughly) the Golden Rule.

  4. Steve W says:

    I’m not a criminal lawyer, and the others here will clarify further, but your point is antithetical to the constitutional and judicial policy to protect against unfair searches and seizures. That is, in order to protect the innocent and ensure that the government doesn’t overstep its bounds we are essentially choosing to be willing to let some of the guilty go, however distasteful their crimes. It goes to the heart of the approach to criminal justice. For this same reason in some cases a single doubting juror can lead to the failure of a conviction.

    [Welcome back to emptywheel. This is your second username; please stick to one so community members get to know you. Thanks./~Rayne]

  5. Troutwaxer says:

    The problem with “kiddie porn” is this: It can arrive on a computer as a spam email from a porn company and get shot straight to the “junk” email folder, at which point the picture is someplace on the hard drive and the user doesn’t know it. I also had an idiot relative with pretensions of being a photographer who used to send “cute” pictures of his half-naked kids, and I had to nuke those pics on arrival, then nuke evidence of the nuking. But if I’d said “cute picture, I think I’ll save it” I’d be in a world of hurt should someone search my computer… now I’d have multiple naked kids from multiple sources (stupid relative + spam.)

    • P J Evans says:

      My email lives on their servers – it’s only on my hard drive if I save it locally. And I don’t save junk mail except as text (and then only if it’s amusing – mostly 419s).

    • So_n_so says:

      A perfect example of gov’t (FBI) over-reach. I’ll never forget the look on my mother-in-law’s face when she accidentally typed Hotbox instead of Hotbot (search engine run by Wired back in the day…). We never could clean the computer, and ultimately wiped the whole thing an reinstalled the OS from scratch.

  6. Colonel Alexsay Potemkin says:

    What about the possibility of using FBI informants to incite people into possible criminal activity to gain FISA warrants?

    I have been considering the possibility that a FISA warrant was obtained on Michael Cohen’s phone on the basis of the Moscow Trump Tower negotiations using financed by sanctioned Russian bank VTB. Here is the problem, the financing was suggested by FBI informant Felix Sater, how can we be sure Sater’s sudden interest in this project wasn’t driven by a desire to gain a FISA warrant on Cohen’s phone, rather than a genuine interest in down-town Moscow real estate development?

    I take it this was Felix Sater in the Steele dossier:

    “Finally, regarding TRUMP’s claimed minimal investment profile in Russia, a separate source with direct knowledge said this had not been for want of trying. TRUMP’s previous efforts had included exploring the real estate sector in St Petersburg as well as Moscow but in the end TRUMP had had to settle for the use of extensive sexual services there from the local prostitutes rather than business success.”

  7. e.a.f. says:

    liked the article. Clear, easy to read for non lawyers.

    The FISA warrants, in my opinion, ought not to be used for “regular” criminal matters. That was not what they were ever meant to be used for. In the case of Gartenlaub it comes across as the FBI just getting even for not finding what they wanted to. This reflects badly on the FBI when they do things such as this.

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