FBI Used FISA Warrant To Prosecute Boeing Employee For Child Porn Possession

from the regular-crime;-special-warrant dept

Ellen Nakashima of the Washington Post has the disturbing story of former Boeing employee Keith Gartenlaub, whose home was searched for evidence of his alleged spying for the Chinese. Specifically, the FBI was looking for documents about the military's C-17 transport plane. Instead, FBI agents came across something else.

[S]ince the search in January 2014, no spy or hacking charges have been brought against him.

Instead, seven months later, he was charged with the possession and receipt of child pornography. He has denied the charges, but a jury convicted him in December.
Questions have been raised about the evidence obtained during the search.
In Gartenlaub’s case, the defense unsuccessfully argued that he could not be linked to identical copies of child pornography videos found on four hard drives in his house. Two of the hard drives had been in a computer that was kept at a beach house where numerous people had access to it, Gartenlaub said.

[...]

Jeff Fischbach, a forensic technologist for the defense, said there is no evidence that the child pornography was ever seen by anyone who used the computer, much less Gartenlaub.

The government’s own forensic expert, Bruce W. Pixley, said he could not find any evidence of the material being downloaded onto any of the computers, the defense noted. That means it had to have been copied onto the computer — but by whom is unknown.
The defense had more difficulty than usual in challenging the evidence. The search wasn't performed with a standard FBI warrant, but instead -- due to its supposed national security implications -- with a warrant issued by the FISA court. That the FBI found child pornography instead is unfortunate, but that fact shouldn't nullify the original warrant or result in the suppression of the evidence, at least according to the DOJ.

While the DOJ is correct in the fact that the FBI wasn't going to call off the search after it uncovered evidence of other wrongdoing, its defense of the way the evidence was obtained is disingenuous. Unlike a regular warrant, a FISA warrant is almost completely unchallengeable. The entire process is ex parte, including the submission of evidence obtained -- even if the evidence has nothing to do with national security.

In Gartenlaub's case, every submission by the government was done under seal. His legal representation had no access to the government's presentation of evidence. The possession of child porn is certainly nothing the government takes lightly, but once the focus of the investigation shifted away from alleged espionage, the process likewise should have changed. At the very least, the FBI should have had a new warrant issued, signed by a regular magistrate judge -- one that would have allowed the defense to examine the affidavit and the results of the search.

JoAnne Musick of Fault Lines points out just how much the FISA Court's involvement screwed Gartenlaub.
Once the warrant issued, there was virtually no means by which Gartenlaub could challenge the basis for the warrant. Of course, the court found the pornography material “obtained pursuant to FISA was lawfully acquired” and did not violate the defendant’s Fourth Amendment rights. Additionally, after ex parte pre-trial briefings between the court and government, the judge found:

"[T]here is no indication of any false statements having been included in the FISA materials."

Surely the government would not have proven any false statements in their private discussions with the court. Perhaps had the defense had an opportunity to review or challenge the basis for the warrant, the court might have found false statements. Yet, we will never know as the defense was unable to review the evidence or otherwise challenge it. It’s disturbing that the accused was unable to obtain even basic information on how the information was obtained and why the warrant was issued.
The ability to challenge presented evidence is a key part of the justice system. Wrongs committed by the government during the search for evidence can only be righted through this process. But the use of a FISA warrant deprives the accused of that potential remedy. When it became apparent the investigation was no longer focused on matters of national security, the FBI should have unsealed documents and turned over evidence to Gartenlaub's legal reps. Instead, it chose to keep operating under the pretense it was investigating espionage and availed itself of all the advantages that come with national security-related investigations.

Then there's this: even though the FBI had enough evidence of child porn possession to prosecute (successfully) Gartenlaub and nothing in the way of evidence he was involved in spying for the Chinese, it still attempted to leverage what it had obtained to turn Gartenlaub into a government informant.
During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.
So, not only did the government use its additional national security benefits to keep Gartenlaub from mounting a serious challenge to submitted evidence, but it also used evidence it gathered with an unrelated search to pressure him into admitting he was a spy -- something it had no evidence of at all.

Filed Under: child porn, fbi, fisa, law enforcement, national security, warrant


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  • identicon
    Anonymous Coward, 29 Apr 2016 @ 3:59pm

    wow is all i can say sounds like they planted the stuff to me

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2016 @ 4:02pm

    we will slip in with a usb drive and copy some shit to your hard drive and then charge you with it. Not here you wont takes the root password to mount the usb drive

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2016 @ 4:03pm

    You need to stop thing of America where laws are equal to all and people are considered innocent until proven guilty.

    The core principles America was founded on no longer apply when the government is a criminal one.

    They will keep treating their citizens like they have no rights. The only difference between them and other totalitarian states is they have very good propaganda to disguise it.

    I say this because these articles authors always come off as being so surprised their government is doing illegal things to get what they want.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2016 @ 5:24pm

      Re:

      The core principles America was founded on no longer apply when the government is a criminal one.

      Cannot be said enough!

      The 2nd Amendment is to ensure that the American Citizens (The Ultimate Law and King of the Country) may keep and bear arms so that they may form a militia against all enemies foreign and domestic.

      There is a reason governments seek to disarm citizens! So that the may become a criminal government without fear of reprisal from the citizens.

      To the UN-Americans that served on this Jury, shame on you! There are VERY good reasons why you do not convict someone on evidence "discovered" during the course of a separate investigation.

      The government lying thugs have already proven they are more than willing and ready to lie at a moments notice to get what they want.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Apr 2016 @ 7:30am

      Re:

      dammit I meant thinking not thing

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Apr 2016 @ 9:38pm

      Re:

      we let them do it overseas then they realized the line we drew was in pencil.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 29 Apr 2016 @ 4:11pm

    Lovely priorities

    During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.

    So they believed that they had sufficient evidence to nail him to the wall on possession of child porn, but they were willing to drop that entirely so long as he was agreeable to turn government informant or confess to potential espionage.

    Yeah, the warrant wasn't even close to the only screwed up thing in this case, though given the dodgy nature of the whole process I wouldn't be surprised if their willingness to drop the CP charges was because they were simply using the threat of them to pressure him to cave.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2016 @ 4:32pm

    C-17?

    The Boing C-17? From 1991? Oh yeah, the Chinese must be very interested in that technology...

    What next? FBI tries to link an Apple employee to leaking PowerBook170 blueprints?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2016 @ 4:59pm

      Re: C-17?

      You have no idea what you are talking about.

      reply to this | link to this | view in chronology ]

      • identicon
        Old Lag, 30 Apr 2016 @ 10:16am

        Re: Re: C-17?

        That's right, he does have no idea of what he's talking about. McDonnel Douglas was working on the C-17 as early as 1985. I personally saw some of the fatigue tests they used to design lap joints in autumn of 1985.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Apr 2016 @ 4:53pm

    Hillary 2016.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 29 Apr 2016 @ 5:01pm

    IIRC they secretly entered his home and accessed the computers.
    Gee we can't see where he downloaded the CP, but somehow CP got on the machines we had secret unfettered access to.

    I mean its not like the legal system encourages them to drum up charges to get them to admit to the real thing they want. Oh they offered to drop the CP charges if he'd come clean about the thing they were investigating and found no evidence to support?

    Secret courts, secret laws, secret additions to guarantee convictions.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2016 @ 5:19pm

      Re:

      As I was reading the article, I was thinking, 'gee, there's an awful lot of CP on people's computers. Seems like it's always the FBI finding it."

      Now, tell me again, who was running a CP site on Tor with the blessing of a judge?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Apr 2016 @ 9:48pm

      Re:

      it has been seen in several cases and is common sense that you dont want to store child porn on your own computer. people who dont know how to use files sharing often end up infecting their computer with back-door's gneutella got really bad towards the end where everything was a click-bait virus. The general populace has no idea how within the realm of possibility it is for someone with intermediate understanding of computer systems to to plant a file on a remote system.

      reply to this | link to this | view in chronology ]

    • icon
      Oblate (profile), 2 May 2016 @ 10:20am

      Re:

      I interpreted the "can't determine when it was downloaded" to mean that the time stamp, file location, or other metadata either implied another user downloaded/copied it, or ruled him out as the downloader. If they were to plant a file, I would think they would match the times stamp, etc., to clearly implicate Gartenlaub (assuming minimal competency, which could be where my expectations diverge from reality).

      reply to this | link to this | view in chronology ]

  • identicon
    Crusty the Ex-clown, 29 Apr 2016 @ 5:11pm

    Secret warrants, secret search, secret evidence...

    ...what could possibly go wrong?

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 29 Apr 2016 @ 5:16pm

      Re: Secret warrants, secret search, secret evidence...

      Maybe he should be allowed to serve secret prison time.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Apr 2016 @ 5:26pm

        Re: Re: Secret warrants, secret search, secret evidence...

        that's the idea!

        Except the people your prison time will be a secret from are the citizens and your family.

        You will just be disappeared and charged with crimes you are not allowed to hear about for the sake of nation security.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Apr 2016 @ 7:32am

        Re: Re: Secret warrants, secret search, secret evidence...

        Wait until they close your borders then everyone will be serving secret prison time.

        reply to this | link to this | view in chronology ]

  • identicon
    In the know in the Underworld!, 29 Apr 2016 @ 9:38pm

    Old Thieves' Trick

    This trick is as old as the personal computer itself. Take it from me, an ex-con.

    If you're going to rip off someone, plant CP on their computer during the caper. Usually, you then phone in an anonymous tip about your vic: "Hello, police? I think you should look at this pervert's computer for baby-raper pics." Cops find CP, see red, and forget to investigate your theft.

    I'm surprised I have to remind this crowd.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 30 Apr 2016 @ 12:53am

    Huh.

    Ok, you paint a picture of due process staying out the window while the charges were changed from espionage to child pornography.

    Sure, bad.

    But it eludes me why they are fine to go out the window in the first place.

    I mean, it's what they use on Snowden as well. "Look buddy, we charge you under the Espionage Act. You are no longer allowed to defend your acts. You are not entitled to fair process any more."

    This thing is an abomination clearly outside of the range of the Constitution. Sure, it's "rife for abuse" as this case shows. But that does not really change that it's abuse in the first place. Why does the U.S. entertain Stalinistic facilities and procedures like that in the first place? The problem is not so much that they misapply this crap here. The problem is that it's a tool in their drawer. It shouldn't be.

    Not in the United States of America.

    reply to this | link to this | view in chronology ]

  • identicon
    Dr evil, 30 Apr 2016 @ 6:33am

    Got it wrong again

    The reason you need a warrant is so that you can validate your educated suspicion by finding the thing you were looking for. By not having a warrant for a thing, you are able to place anything you like on the computer and then 'find' it.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 30 Apr 2016 @ 7:16am

    If we think carefully, this is a very serious issue. I've learned through these years to be very suspicious of things certain law enforcement circles say and the FBI certainly fits in. Let's suppose the guy was cautious and they really couldn't find any trace of the material but they knew by means that could not be proved (ie: they heard the guy bragging about it but there's no record of it). They could go, insert CP into his computers and get him arrested and suppressed for CP charges because he virtually can't challenge the warrant or the evidence. Regardless of the crime, jailing people for another thing is simply not right, not fair. It works like the asset forfeiture mess. The means help getting to the end but they are not justifiable.

    Why are they not justifiable? What if the FBI wanted to inflate their numbers to get more funds and simply decided to produce one more case when they didn't find the bomber docs? It's not like they haven't done it tons of time with people that would otherwise live a frustrated but normal life instead of being jailed. Heck, they took advantage of a guy who was thinking about suicide. It's despicable.

    So yeah, this is a huge problem and everybody should be up in arms against it in the US.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Apr 2016 @ 9:36pm

    meanwhile apple and google continue to attract the brightest minds and police cant find people to recruit. working for these companies used to be a matter of prestige. by doing things like this we are damaging our nation far more than we know. who with any knowledge wants to work in the intelligence field or for the military industrial complex.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 May 2016 @ 12:58pm

    The KGB Rides Again

    The FBI "knew" this guy was guilty of espionage, but could find no physical evidence of same. They therefore planted "evidence" of CP on, not one, but several disk drives (the same files on each apparently), in order to allow a conviction unrelated to the original warrant. Remember, the FBI's funding and their job security is entirely based on "wins", be they actual or manufactured. This is way beyond what Stalin pulled. He just had people shot. He didn't try to justify it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 May 2016 @ 8:37am

    Even if the FBI had nothing to do with inserting the CP on the computer, there are still plenty of ways CP could end up on someone's computer through no fault or act of the owner, and for a prosecutor, a CP conviction is such a nice feather in their cap that they'll ride roughshod over the accused's rights to get a conviction. Doesn't matter if it's only a very few pictures, or if there is no evidence the accused ever looked at them or even knew they existed on his computer. There are hackers/trolls who know this and if they really want to ruin someone's life, they know one of the best ways to do it, if they can pull it off, is to plant CP on their computer.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 May 2016 @ 10:02am

    come on, this guys DO NOT KNOW HOW TO PLANT CP EVIDENCE????

    you can always ask the cable guy for help (Germany

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 2 May 2016 @ 1:48pm

    6th amendment

    His legal representation had no access to the government's presentation of evidence.

    Is there any attempt to square that with the 6th amendment, or do courts just decide to ignore such rights when they feel like it without offering explanations?

    reply to this | link to this | view in chronology ]


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