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How a federal spy case turned into a child pornography prosecution

washingtonpost.com

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Re: How a federal spy case turned into a child pornography prosecution

#101

Post by fiatmoney »

tptacek wrote: post #40
fiatmoney wrote: post #32

Earlier quoted context omitted.

"Evidence" isn't just "the parts of the evidence the prosecution wanted to use". How is the defense supposed to cross-examine the person who gathered the evidence when they can't investigate the circumstances under which it was gathered? How are they supposed to make a cogent argument that it was not a properly issued warrant unless they can see it? How are they supposed to argue that even if the the warrant was prop…

I understand the argument, but is that what actually happened here? My understanding is that the one thing the defense doesn't have is the whole justification for entering the defendant's personal space in the first place. I could be misreading!

It sure looks like you are. "Gartenlaub wants to see the warrant in his case so he can challenge it as based on false information and therefore invalid." According to the article the warrant itself and the filings in support of it are unavailable to the defense. That is essential to making arguments on the legality of the warrant in the first place, the scope of the evidence gathered to the warrant, and factual arguments derived from the process of executing the warrant.

(Example! The warrant included Device X, because Secret FBI Source Y said it had classified information. The device was searched, but contained no such information; in fact it had been completely wiped. This lets the defense argue that the FBI knew the source was unreliable, or that the evidence found was exculpatory (eg, evidence the target had been hacked to plant the child porn). None of this is available to the defense.)

The government says that the evidence gathered in the warrant has been made available. They could very well be lying, or simply mistaken, and it's impossible to investigate. Regardless, it is only part of the issue.

The process here is that the judge looked at it the government's arguments, without involving the defense, and said "yeah, it looks good, trust me / them".

(Which, incidentally, is completely contrary to the notion of the judge as a neutral arbiter rather than an inquisitor working for the government. Not surprising when the FISA court itself essentially operates in that capacity.)

Re: How a federal spy case turned into a child pornography prosecution

#102

Post by krapp »

kazagistar wrote: post #80
x3n0ph3n3 wrote: post #35

Earlier quoted context omitted.

I'd like both, actually, but I guess your strawman allows you do just dismiss other perspectives. I want a government accountable to the people, and the right to bear arms was meant to ensure that. The removal of arms turns a citizenry into subjects.

It doesn't seem to be doing a particularly good job of ensuring it at the moment.

This is because we no longer live in the time of the founding fathers. Most Americans don't see themselves living in a state of tyranny, and reject the thesis of protracted, mass violence being necessary for a modern free state. Whether this is due to the cowardice or sanity of the American people is a matter of debate.

Re: How a federal spy case turned into a child pornography prosecution

#103

Post by function_seven »

tremon wrote: post #96
function_seven wrote: post #39

Earlier quoted context omitted.

You're not double-taxed as a US citizen abroad. You pay the higher of the two taxes. And you don't pay US taxes on the first 100k of income.

How does that work? If your local taxes are more than what the US would take, they take nothing? And if the US taxes are higher, the US only receives the surplus amount?

Link below explains it better. I'm sure it's as complicated as the IRS can make it, and I'm sure there are situations where some of your income is double-taxed, but for most people, you choose either a tax credit in the amount of foreign taxes paid, or you get to exclude 100k of your income right off the bat.

http://www.nolo.com/legal-encyclopedia/when-us-citizens-livi...

Re: How a federal spy case turned into a child pornography prosecution

#104

Post by alanwatts »

patcheudor wrote: post #97
boosting7669 wrote: post #75

Earlier quoted context omitted.

And yet a jury convicted him. This kind of thing is far beyond the comprehension of the common juror. Knowing what I know about computer security and how EASY it is to plant digital evidence without leaving a trace, even from thousands of miles away, I'd have to see video evidence of the defendant downloading the material as it happens before rendering such a verdict, especially if it's going to mean decades in priso…

"Knowing what I know about computer security and how EASY it is to plant digital evidence without leaving a trace." This right here is the conversation which needs to happen around this particular topic. In the security community the topic of forensic discovery of child porn tends to get a hand-wave because child porn. It's there so someone must be guilty. The fact is, it is trivial to plant such evidence on anyone's…

>to catch someone who is guilty is very difficult. Difficult to the degree that it should require video and/or photographic evidence of the perp at the computer looking at the images.

That would be very easy to fake too.

Re: How a federal spy case turned into a child pornography prosecution

#105

Post by alanwatts »

vermontdevil wrote: post #89
SeanDav wrote: post #55

If, during the entire history of the USA, some FBI agents had never been proven to be corrupt, if judges had never been proven to be corrupt, if evidence had never been proved to be planted by authorities, then maybe, just maybe this would be justified. In the real world, however, this is very, very scary and I consider myself lucky I am not subject to this travesty. Since there does not appear to be any proof that h…

Yep. Ever since the days of John Adams willing to defend the British soldiers, it's obvious those with mob mentality of those in power can roughshod over anyone they deem guilty. A right to defend yourself against any charges is a critical right and I fear it's being eroded with all these "national security" excuses.

>it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.

-John Adams' Argument for the Defense: 3–4 December 1770

http://founders.archives.gov/documents/Adams/05-03-02-0001-0...

Re: How a federal spy case turned into a child pornography prosecution

#106

Post by darawk »

kstenerud wrote: post #50
darawk wrote: post #44

To be honest, nothing about this seems particularly bad. It seems like circumstantially there was some evidence that he may have been a spy, the government executed a FISA warrant on the basis of that belief, and then found evidence of child porn. I'm not generally a fan of secret warrants or broad search and seizure powers, but this really doesn't strike me as a particularly bad case. This seems, by and large, like…

Until you get to the money shot: "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." No evidence of downloading the porn. No evidence of viewing the porn. The only way, according to their own experts, is if someone…

> "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."

While that does sound damning in a certain light, it's also consistent with their primary mission, which is to counter espionage. I would hope that the FBI would make exactly this kind of tradeoff in its pursuit of spies.

Now, of course, if your implication is that they fraudulently manufactured the CP evidence in order to create leverage to extract this confession, that is indeed reprehensible. But if they just happened to find CP and then used it as leverage to pursue what is, IMO, a more important line of inquiry, then that is just fine with me.

> No evidence of downloading the porn. No evidence of viewing the porn.

While the article does say that, let's be honest. What evidence can there be of downloading porn? We all know how computers work, and this guy was a sysadmin, so he does too. The fact that he didn't forget to clear his browser history does not invalidate the presence of child porn on his computer.

That being said, of course it also doesn't eliminate the possibility that he was framed or that he wasn't at fault for its presence there. But if the FBI finds CP on someone's computer, I expect them to investigate and prosecute the case in the absence of positive exculpatory evidence indicating that it wasn't put there by that computer's owner.

Re: How a federal spy case turned into a child pornography prosecution

#107

Post by CyberDildonics »

coffeedean wrote: post #29
Filligree wrote: post #6

Earlier quoted context omitted.

> 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.

That is the key bit of the whole story. I can only imagine how many more cases have been handled like this, with drug crimes or tax evasion charges used instead of pornography.

The CEO of Quest went to jail for insider trading after refusing to bend to the NSA.

Re: How a federal spy case turned into a child pornography prosecution

#108

Post by chroma »

mindslight wrote: post #73
mholt wrote: post #8

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 no…

Jail time for storing a pattern of bits? I will stand up and say that's unjustified. The ridiculous basis of the concept is exactly what causes this screwed up regime with no possible discernment between the crime and being framed for the crime. We see the same patterns arising for the only-slightly-less preposterous idea of criminalizing possession of psychoactive substances - uniformed thugs planting a bit of an ut…

> Jail time for storing a pattern of bits? I will stand up and say that's unjustified. The ridiculous basis of the concept is exactly what causes this screwed up regime with no possible discernment between the crime and being framed for the crime.

I'm not going to come down on either side of child porn, but there are plenty of bit patterns where possessing them should result in jail time. For example: Defense secrets. Or weapon designs. Or novel ways to enrich fissile materials.[1] Now, in some circumstances there may be reasonable doubt that you actually possess the data. If the data is only on an unencrypted USB key behind your couch, maybe that's doubtful enough to avoid conviction. But if it's on your encrypted laptop, or your Gmail account's sent items folder… that's another story. Technically, yes you could be framed. But that's about as likely as someone planting drugs inside a safe in your house.

> …keep such images off of Google etc so we don't stumble upon them…

How exactly would this work if there's no way to punish people for possessing data? Without sanctions, it would depend on the goodwill of all websites to censor such content. Otherwise you'll just get trolls pasting links to child porn.

I'm sure that in a country of 350 million people, people get framed from time to time. But it's used as an excuse far more often than it actually occurs. And if you can't trust cops to not frame you, no feasible change in laws will fix that problem. You'd have to legalize every frame-able crime or impose such onerous levels of proof that almost no criminal would be convicted.

1. https://en.wikipedia.org/wiki/Separation_of_isotopes_by_lase...

Re: How a federal spy case turned into a child pornography prosecution

#109

Post by [deleted] »

rl3 wrote: post #88

> 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 who…

[deleted]

Re: How a federal spy case turned into a child pornography prosecution

#110

Post by stegosaurus »

SeanDav wrote: post #55

If, during the entire history of the USA, some FBI agents had never been proven to be corrupt, if judges had never been proven to be corrupt, if evidence had never been proved to be planted by authorities, then maybe, just maybe this would be justified. In the real world, however, this is very, very scary and I consider myself lucky I am not subject to this travesty. Since there does not appear to be any proof that h…

You don't even need to assume governmental malice!

What happens if I hack into your machine and plant something? I might have reason not to like you. I might just be a troll. It might give me a competitive advantage in some market to take you out. Perhaps we're both candidates for local government and I want to win.

Strict liability crimes are poisonous, illegal numbers are simply absurd.

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