By Ellen Nakashima, Washington Post
A California appeals court rejected a defense contractors argument that his conviction on child pornography charges was unconstitutional because the government conducted an overly broad search under a warrant issued to obtain evidence of foreign spying.
Keith Gartenlaub, who had been a senior computer systems manager at Boeing in Long Beach, California, was convicted in December 2015 of one count of possession of child porn. He was sentenced to 41 months in prison. On Monday he was moved to a halfway house.
Gartenlaub, who lived in Lake Elsinore, came to federal agents attention as they investigated an alleged leak of information to Chinese agents about Boeings C-17 military transport plane.
Though the initial secret search of his house was authorized by a warrant issued under the Foreign Intelligence Surveillance Act (FISA), which governs espionage inside the United States, no spying or hacking charges were ever brought against him.
Gartenlaubs defense team argued he should be entitled to see the FISA order application, which is classified. His lawyers pointed to the Justice Departments release of a redacted version of a 2016 FISA application to wiretap Carter Page, one of President Trumps former campaign advisers. The release of the Page FISA materials was unprecedented.
In the Gartenlaub investigation, FBI agents turned up child porn material in what his legal team contended was a search that swept too broadly. Seven months later, they obtained a criminal warrant to conduct a further search.
Gartenlaub, 50, wanted to see the FISA order to challenge it as based on false information. On appeal, he also sought to have the court throw out the child porn evidence on grounds it was obtained in violation of the Fourth Amendment.
In a brief opinion, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit upheld the lower courts conviction. “No controlling authority dictates the conclusion that the governments 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 courts failure to follow it was plain error,” the panel said.
The court acknowledged “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] individuals private life . . . 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.”
However, it went on to say, “the district court did not commit plain error by concluding otherwise.” The panel did not elaborate.
An attorney for Gartenlaub expressed dismay with the 4.5-page ruling, which was filed on Sept. 19 but unsealed only on Tuesday – 10 months after oral arguments.
Evidence is being reviewed in secret that our client has never seen, and that cuts against our system of justice,” said Tor Ekeland. “This case goes to fundamental matters of due process and our adversarial system of law.”
Elizabeth Goitein, a national security law analyst at the Brennan Center for Justice, said the court “punted on the critical Fourth Amendment question.” A warrant is supposed to describe with particularity the places to be searched and the things to be seized. “In this case the FISA order became a general warrant, which is what the Fourth Amendment is supposed to protect against,” she said.
Ekeland said Gartenlaub will move for a rehearing by the entire court.
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