How a federal spy case turned into a child pornography prosecution

> In Gartenlaub’s case, the government made sealed filings, so neither the defense nor the public was able to see them. Based on the secret filings, the judge held that the government had shown probable cause that the house to be searched belonged to “an agent of a foreign power."

That's typically what you read about foreign police states.

> In Gartenlaub’s case, the government made sealed filings, so neither the defense nor the public was able to see them. Based on the secret filings, the judge held that the government had shown probable cause that the house to be searched belonged to “an agent of a foreign power” or a spy.

> “The government is increasingly using national security tools to investigate domestic criminal ­cases, bypassing key constitutional protections,” said Patrick Toomey, a staff lawyer with the American Civil Liberties Union. “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.”

This is bullshit. You shouldn't be able to withhold evidence from the defense when you are talking about throwing someone in jail.

They just want to get around the normal domestic constitutional protections because it makes their job easier. Yeah, well, you make the prosecution's job easier and you end up with prisons full of people because their key performance indicators are convictions and their conviction rate.

> RIVERSIDE, Calif. — FBI agents entered Keith Gartenlaub’s home in Southern California while he and his wife were visiting her relatives in Shanghai. Agents wearing gloves went through boxes, snapped pictures of documents and made copies of three computer hard drives before leaving as quietly as they had entered.

> 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.

> Gartenlaub, 47, was fired in August 2014 and has been unemployed since. His attorney said his defense was hampered by an inability to obtain basic information about how the evidence was obtained and on what specific grounds the warrant was issued.

> 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.

This reads like, after failing to find proof he was a spy, the FBI "found proof" he was a pedophile which given the sheer quantity of child porn the FBI has control over seems oddly suspicious. It is extremely easy to plant the information on the hard drives but it is much harder to create a chain of events that links the specific user to the chain of events from acquiring it to viewing it. [e.g. If you provide dates/times, what happens if he the guy can prove he wasn't home at the time?]

So they went fishing with child porn charges in order to "encourage his cooperation".

Admittedly, this could be a story the guy just tells to convince people he isn't a pedo but honestly...it reads like they went with the one charge no one would defend him on that was easy to fabricate. "We think he is a spy, we think he is guilty, so let us create a situation that allows us to pressure him to confessing what we really care about."

It isn't like the FBI hasn't done this before.

> According to two Boeing colleagues, who spoke on the condition of anonymity because they were not authorized to talk to the media, there is no such job at the company. And Gartenlaub was, in any case, an IT manager. Moreover, they said, the breached files were accessible through servers in the field, such as at Air Force ­bases. These were not servers that Gartenlaub or his team of engineers who supported the plane’s designers had access to, they said.

Wow. The guy didn't even have access to the stuff he was accused of leaking?!

> 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.

Really? Really.

The main problem I see is this:

> His attorney said his defense was hampered by an inability to obtain basic information about how the evidence was obtained and on what specific grounds the warrant was issued.

Authorities can obtain secret warrants and conduct ordinary criminal investigations with it, conveniently withholding the evidence from the defense attorney on the grounds that it was obtained under FISA. So now a man who is innocent of the crime they got a warrant to investigate is unable to defend himself for another, more ordinary, crime.

Not saying that crime is excusable and that jail time isn't justified for child porn, but the inability to defend himself seems unfair.

It is, but isn't it also the case that secret court filings are as old as the US courts? How else would espionage prosecutions work? Similarly, how would complicated organized crime investigations work without secrecy? Isn't the alternative that prosecutors get exactly one bite at the apple, and if they're wrong, the target of the investigation is tipped off?

The case that ultimately appears before the court, of course, needs to be transparent. And the evidence collected by the prosecution must be made available to the defendant. But this isn't that.