The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

In 2013, Wesley Harris, an FBI agent in Los Angeles, California, read a Wired.com article (https://www.wired.com/2013/01/china-transport-first-flight/) reporting that the Chinese had developed a military transport plane, with similarities to the United States's C-17 aircraft, which had been developed by Boeing. The article mused that "Beijing may also have acquired some of the C-17's blueprints from a spy working at Boeing." Subsequently, Agent Harris launched an investigation, which soon focused on Keith Gartenlaub, who was working at Boeing at the time. In June 2013, a magistrate judge in Los Angeles issued a warrant authorizing a search of Gartenlaub's email account (2013 email search). The FBI subsequently submitted an application for a FISA warrant to the FISC. The FISC authorized a search of Gartenlaub's home and computer, which were executed by FBI agents on January 29 and 30, 2014. During that search, FBI agents found hard drives containing child pornography. In August 2014, the FBI obtained additional search warrants from a magistrate judge, authorizing searches of Gartenlaub's home, storage units, and computers for evidence of child pornography. In the subsequent search, the FBI seized three hard drives containing child pornography.

On August 27, 2014, Gartenlaub was charged in a criminal complaint in the U.S. District Court for the Central District of California following his arrest. Gartenlaub was arrested that day on a federal charge of knowingly possessing child pornography. In addition to filing the criminal complaint, the government filed a notice of intent to use information obtained from electronic surveillance and physical searched conducted pursuant to FISA. On February 2, 2015, the defendant filed, under seal, a motion seeking disclosure of the FISA materials, suppression of all information gathered through FISA, and a Franks v. Delaware hearing in order to establish that the FISA application and resulting search warrant application contained intentional or reckless material falsehoods and omissions. On May 4, 2015, the government filed a largely classified, ex parte opposition to Gartenlaub's FISA motion, arguing that the court should conduct an in camera, ex parte review of the FISA materials due to the classified and highly sensitive nature of the FISA materials. On August 6, 2016, District Judge Christina A. Snyder, in a sealed opinion, refused to disclose to Gartenlaub the FISA application and order, and she denied his motion to suppress the fruits of the FISA search.

On December 10, 2015, Gartenlaub was convicted by a jury for receipt and possession of child pornography; Judge Snyder dismissed the receipt count as multiplicitous. On August 29, 2016, Gartenlaub was sentenced to 41 months of imprisonment and $3,430 in restitution.

On September 9, 2016, Gartenlaub appealed his conviction and his sentence to the 9th Circuit Court of Appeals. On February 15, 2017, the Electronic Frontier Foundation and the American Civil Liberties Union filed an amicus brief in support of Gartenlaub and reversal. On December 4, 2017, the parties conducted oral arguments in front of Circuit Judges Kim McLane Wardlaw and Ronald M. Gould, and District Judge for the District of South Dakota Lawrence L. Piersol (sitting by designation).

On February 24, 2018, John D. Cline, attorney for Gartenlaub, wrote a letter to the appeals court's clerk. On February 2, 2018, President Trump had declassified and approved the release of a House Permanent Select Committee on Intelligence (HPSCI) majority memorandum that summarizes portions of a FISA application targeting Carter Page, an American citizen and a onetime foreign policy advisor to the Trump Campaign. See In re Carter W. Page, NS-DC-0127 in this Clearinghouse. Cline argued that the declassification of the HPSCI memorandum demonstrated that "it is possible to discuss publicly the merits of a FISA application without damaging national security;" therefore, he reasoned that if the HPSCI memorandum could be disclosed without harming national security, then a comparable disclosure of the FISA application for Gartenlaub should also be disclosed.

On October 2, 2018, in an unpublished and unsigned memorandum, the appeals court affirmed Gartenlaub's conviction. First, the appeals court found that a rational jury could have found the essential elements, including knowledge, of the crime beyond a reasonable doubt. In particular, the government had demonstrated that Gartenlaub knew that child pornography was present on his computer and that he had accessed the child pornography through his password-protected computer user account. The appeals court also found that the district court did not commit plain error by failing to suppress the evidence from Gartenlaub's computer, since "[n]o controlling authority dictates the conclusion that the government's [FISA] search and subsequent use of FISA-derived materials in a non-national security prosecution violates the Fourth Amendment." But the appeals court did note that this case came "perilously close to the exact abuses against which the Fourth Amendment was designed to protect." Furthermore, despite a circuit split as to what deference appeals courts should give a district court's determination that a FISA order was based on probable cause, the appeals court declined to resolve the issue. It believed that probable cause existed here, under either a de novo or an abuse of discretion standard of review, to support the FISA warrant. Lastly, after having conducted an in camera review of the underlying FISA materials, the appeals court concluded that the disclosure of the FISA materials to Gartenlaub was not "necessary to make an accurate determination of the legality of the search."

On March 7, 2019, Gartenlaub appealed his conviction to the United States Supreme Court. His petition for certiorari is pending as of March 31, 2019.

Lisa Limb - 03/01/2019


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