FISA Court's Secrecy Threatens to Subsume Our Open Court System

Things appeared to be going swimmingly for Keith Gartenlaub, a former Boeing engineer whose appeal of a 2015 conviction for possession of child porn was heard before the Ninth Circuit Monday, December 4. The hearing focused on whether the child porn should ever have been discovered; Gartenlaub’s lawyers argued that because child porn is not foreign intelligence, those files went beyond the scope of a warrant authorized by the secret FISA Court back in 2014.

FBI conducted the search in question—a sneak and peek search of his home over several days, during which a number of computer devices were secretly imaged—under FISA’s physical search provision, not the better known Section 702. But because it pertains to the use of data collected under FISA for criminal prosecutions, any decision in this case might affect back door searches currently conducted under that statute as well.

“The only thing the Foreign Intelligence Surveillance Court can authorize a search for is foreign intelligence information, which is defined in the statute,” said Gartenlaub’s lawyer, John Cline, at the hearing. In Gartenlaub’s case, that definition would be information that is necessary to the ability of the United States to protect against spying by China. “Although sometimes the definition can seem broad,” Cline argued in court, “it certainly doesn’t encompass child pornography.”

That seems a basic enough concept, one even endorsed by FBI Director Christopher Wray in a recent speech describing what the government obtains under a different foreign intelligence program, FISA’s Section 702. “The only stuff that’s in [702 collection shared with FBI] is information about foreigners, reasonably believed to be overseas, for foreign intelligence purposes. So that’s foreign intelligence information in there. That’s not evidence of … I don’t know, pick an example, you know, child porn, or something else."

And at least from the questions, it seemed the judges hearing Gartenlaub’s appeal agreed that the government shouldn’t be searching for child porn with a FISA warrant, at least not in the Ninth Circuit where a 2010 precedent limits the government’s ability to search everything on an electronic device: “The process of segregating electronic data that is seizable from [data] which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect,” that earlier decision held.

All three judges on the panel seemed to have a theory under which they would rule in Gartenlaub’s favor. Judge Ronald Gould worried that if the government found evidence that wasn’t foreign intelligence but revealed something urgent—he used the example of a serial killer’s next targets throughout the hearing—it would need a way to use that information. Gartenlaub’s attorney John Cline and amicus lawyer Ashley Gorski, arguing for the ACLU, both noted an exigent circumstance exception could justify the use of the information on the hypothetical serial killer.

Judge Lawrence Piersol, a senior district court judge from Idaho, seemed to imagine district court judges providing individualized review on whether the information was reasonably obtained in a FISA-authorized search, possibly with the involvement of the court’s own cleared experts.

Judge Kim Wardlaw, who sat on the en banc panel for the Ninth Circuit precedent in question, asked why, when the government saw “a whole database [that] obviously suggests child porn” it couldn’t “go get another warrant?” So she seemed to favor a system where the government would have to get a criminal warrant to obtain child porn. That would present very interesting questions in this case, however, since the government obtained a criminal warrant based on probable cause that Gartenlaub was sharing information on Boeing intellectual property with China before it executed the FISA-authorized search that discovered the child porn.

Anthony Lewis, arguing for the government, responded to Gartenlaub’s argument with vague promises that the minimization procedures—rules that FISA imposes on data obtained under the statute—would take care of any Fourth Amendment concerns. “The minimization procedures themselves really supply the answer in the FISA context,” Lewis said. Accessing data found during a search “simply operates differently in the FISA context, in which there is a robust set of procedures that exist on the back end of the search through acquisition, retention, and dissemination that is simply unlike what happens in a Rule 41 context.”

Only, it’s not as simple as Lewis makes out. On August 11, 2014, over six months after the search in question, the FISA court approved a change to the standard minimization procedures used with warrants like the one that targeted Gartenlaub, permitting the FBI to share data obtained in such searches with the National Center for Missing and Exploited Children to see if files were known instances of child porn.

That change took place months after one of the FBI agents in the case had shared files from Gartenlaub’s hard drives with NCMEC on June 3, 2014. That said, the parts of that opinion that got declassified reveal that, “this Court has approved modifications to these SMPs in individual cases to permit the Government to disseminate information to NCMEC.” So it’s possible the FISC approved the sharing of data with NCMEC in association with Gartenlaub’s individual warrant, which the government might argue is equivalent to obtaining a second warrant, as Wardlaw suggested was necessary.

Still, all the judges seemed insistent that the government account for that precedent in the Ninth Circuit and impose limits to make sure it didn’t end up turning child porn into foreign intelligence information.

Which is why things seemed to be going so well for Gartenlaub’s appeal. Might this be the first case ever where a defendant whose case implicated FISA actually got to challenge the way FISA gets implemented? As Gartenlaub’s lawyer pointed out, that has never happened in the 30 year history of FISA, even though Congress clearly imagined it should.

Things were going swimmingly, that is, up until Wardlaw’s last comments to the government’s lawyer, Lewis. As he finished, she said she had no further questions, but added, “We’re going to ask you to stay after the hearing, to be available for us.” Lewis responded, “Understood, your honor,” as if he (and the people whose bags were sitting behind his counsel’s table but who were not themselves present) had advance warning of this. “Understood,” Lewis repeated again.

That was the first Gartenlaub’s team learned of the secret meeting the panel of judges had planned.

So after having presented a lackluster argument, Lewis was going to get a chance, it appears, to argue his case without Gartenlaub’s lawyers present, to be able to argue that not even Ninth Circuit precedent can limit the government’s authority to search with no limits in the name of national security.

There’s apparently precedent for this. Cline, who worked on the appeal of a defendant who almost got FISA review, Adel Daoud, said the appeals court judges booted him and the other defense lawyers out of the courtroom for a similar ex parte hearing in that case too.

“The Seventh Circuit cleared the courtroom after the public argument and then allowed only government attorneys back in for the classified, ex parte session,” he said.

Gorski, who argued on behalf of the ACLU, says, “The government has previously argued ex parte in FOIA cases, including in a recent case seeking documents concerning the CIA’s torture program.” She notes, “These kinds of one-sided legal arguments are fundamentally at odds with our adversarial system.”

It’s like the secret FISA court is beginning to take over America’s system of open justice, giving the government a mulligan every time it invokes secrecy.

And for Keith Gartenlaub, that kind of secret mulligan may make all the difference.