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Upon finding that those files included apparent child porn, the FBI sent them off to the National Center for Missing and Exploited Children, which confirmed some of the images included known victims.Almost two months later, FBI conducted further (criminal) searches, and arrested Gartenlaub for child porn.I think there’s some merit to the latter claim, but I’m going to bracket it for my discussion, both because I think the FISA issues would remain important even if the government’s case on the child porn charge were far stronger than it is, and because I think the government may be sitting on potentially inculpatory evidence.In this post, I’m going to show that it is almost certain that the government changed FISA minimization procedures to facilitate using FISA to prosecute him for child porn.
They then incorporated the results of that analysis into the August 2014 search warrant application. That application, in turn, produced the warrant that gave the agents authority to search for and seize the very materials that they had already seized and searched under the purported authority of the January 2014 FISC order.
The case is currently being appealed to the 9th Circuit; it will be heard on December 4.
His defense is challenging several things about his conviction, including that there was insufficient evidence to deem him an Agent of a Foreign Power (and therefore to obtain the ability to conduct a broader search than might be permitted under a criminal warrant), as well as that there was insufficient evidence offered at trial that he possessed the 9-year old child porn on which his conviction rests.
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