FBI agents investigating a potential data leak at Boeing obtained a secret warrant to search the home computers of a company manager in California for evidence they hoped would connect him to Chinese
FBI agents investigating a potential data leak at Boeing obtained a secret warrant to search the home computers of a company manager in California for evidence they hoped would connect him to Chinese economic espionage. Instead, they say, they found something else entirely: graphic child pornography.
With that discovery two years ago, an investigation that began with sensational but ultimately unproven allegations of espionage veered into an unrelated child pornography prosecution that won Keith Gartenlaub's conviction in December.
Now, the Los Angeles case is testing a defendant's ability to access information about himself that had been presented to the nation's secretive intelligence court, which issued the warrant that let agents scour his computers. At issue is how the government uses evidence derived through the Foreign Intelligence Surveillance Court and under what circumstances that information should be seen by defendants, particularly when it's repurposed for a routine criminal prosecution that has nothing to do with national security.
Gartenlaub, 47, says he has a right to know the government's arguments that were used to obtain the warrant, and fight them. -"You can't base a search on lies,-" he said in an interview with The Associated Press.
He's seeking a new trial as he awaits his April 18 sentencing, saying there's no evidence he was aware of the child pornography or had ever accessed the images. If that's denied, he's likely to appeal on grounds that the warrant to inspect his computers was based on false assumptions and allegations of a crime - espionage - for which he's never been charged.
It won't be easy. His request to suppress pornography evidence he said was improperly obtained was denied before the trial. He's tried to review the sealed FISA court records in hopes of attacking the FBI search, but the government refused and a judge said he wasn't entitled to it.
-"I don't want the FISA warrant for my own personal edification. I need to know whether they provided probable cause to a judge to search a man's computers and home,-" said his attorney, Mark Werksman.
The FISA court, created in 1978 to hear government surveillance requests in foreign intelligence matters, remains shrouded in secrecy. Judges can theoretically order prosecutors to share FISA information with defendants if they deem it necessary for challenging a search's legality, but courts have consistently agreed with the government that disclosing the material could expose sensitive intelligence secrets. In Gartenlaub's case, then-Attorney General Eric Holder advised against disclosure.
A rare exception came in 2014, when a judge in Chicago ordered the disclosure of FISA materials in a bomb-plot case. A federal appeals court overturned the decision, and the Supreme Court declined to review it.
-"For defendants, access to this information is a matter of fundamental fairness, because without it they cannot meaningfully challenge whether the government's secret searches were lawful in the first place,-" American Civil Liberties Union lawyer Patrick Toomey said in an email.
