What started as an espionage investigation, eventually turned into a prosecution for possession of child pornography. Evidence of child porn possession was found using a FISA warrant issued by a secret court.
Keith Gartenlaub, an IT manager at Boeing, was initially investigated by the FBI under the belief that he had shared information about a military plane with the Chinese government. Colleagues within Boeing stated that the leak under investigation could only have come from servers in the field, such as those at an air force base, and not ones that Gartenlaub or his team had access too.
After the investigation turned up no evidence to link Gartenlaub to espionage, the FBI discovered child pornography on hard drives belonging to Gartenlaub. The defense argued that the pornography could not be linked Gartenlaub because the computers they were found on were at a beach house which numerous people had access too. The government's own forensic expert found that there was no evidence the material had ever been downloaded from the Internet, and suggests it must have been copied onto the computers by some other means, although its unclear who did the copying.
Gartenlaub's defense is hampered by the secretive nature of the investigation. The FBI obtained a warrant to search Gartenlaub's hard drives from the Foreign Intelligence Surveillance Court (FISC), in order to investigate a case of espionage. FISC is a secret court established by the Foreign Intelligence Surveillance Act (FISA). All the filings the government made with the court are sealed, and the defense has no way to access them or challenge them. In normal cases, a defendant would have the opportunity to challenge a warrant and have the evidence collected by it suppressed if any problems are found with the warrant. However, the defense has no way to challenge this warrant in this case due to reasons of "national security."
Patrick Toomey, a staff lawyer with the American Civil Liberties Union, warns that this is part of a larger trend to curtail civil rights on the ground of national security. He states, "The government is increasingly using national security tools to investigate domestic criminal cases, bypassing key constitutional protections. This problem is only compounded in the digital age, where the FBI is collecting vast amounts of our data for intelligence purposes but then goes sifting through all that information in unrelated criminal investigations."
The judge presiding over the child pornography case specifically found that evidence "obtained pursuant to FISA was lawfully acquired," and that "there is no indication of any false statements having been included in the FISA materials." A representative from the Department of Justice argued the Congress always intended for information gathered for the purposes of foreign intelligence to be used in unrelated criminal cases. He also stated, "It would be irresponsible for the government to ignore evidence of criminal wrongdoing when such evidence is lawfully collected."
Gartenlaub has been found guilty of possession of child pornography but is appealing to have the ruling overturned or to obtain a new trial. Gartenlaub has always maintained his innocence both of spying and on the child porn charges. He believes he was targeted for investigation simply because his wife is from China. He also claims that, even after the child pornography charges were made, investigators were still primarily interested in espionage case. He claims FBI agents showed a willingness to drop or reduce the charges if he gave them information on the leak they were investigating.
Should the government use unchallengeable secret warrants to investigate child pornography or other crimes? Leave your comments below.
