National Security Search Warrants Insulate Government Prosecutions from Scrutiny

Recently in California, the FBI sought a search warrant based on suspicion that a Boeing employee was spying for China. The warrant was issued under the Foreign Intelligence Surveillance Act. Search warrants issued under FISA remain secret forever to protect national security.

FBI agents secretly entered the home of the Boeing employee, Keith Gartenlaub, and conducted their search. But no espionage charges were ever brought against Gartenlaub. Instead, he was charged with receipt and possession of child pornography.

As the Gartenlaub case shows, investigations of national security crimes take away critical rights of the investigated individuals even when no evidence of a national security offense is found.

This is especially likely to happen if the search finds child pornography on a computer, as the Washington Post reports happened at Gartenlaub’s home. Gartenlaub denied that he ever knowingly received or possessed that pornography, but a jury found him guilty in December.

In nearly every case in the United States in which a person is prosecuted for possessing something found by a search warrant—child pornography, drugs, illegal firearms, whatever—the person can challenge the legality of the search warrant. Search warrants and the procedures for issuing them must comply with various rules that flow from the Fourth Amendment to the U.S. Constitution. If a warrant is found illegal, the evidence seized under it is suppressed, and usually the criminal case is then dismissed.

This rule—the “exclusionary rule”—has its critics, but it is a fundamental protection all Americans have against violations of their privacy. The exclusionary rule tells police, the FBI, and others in law enforcement that they better follow the Fourth Amendment scrupulously; otherwise, the defendant’s attorney will move to suppress the fruits of their search, and the prosecution built on the search may well go down the drain.

But when contraband of any sort is seized in the execution of a FISA warrant, defense attorneys don’t get to look at the warrant or at the procedure that led a court to issue it. The attorneys remain ignorant of any illegality in the search. Their clients’ rights to privacy cannot be vindicated.

This problem is especially acute when the evidence found in a FISA search is child pornography.

In executing any search warrant, officers are allowed to search only for the evidence specified in the warrant, but they are allowed to seize any obvious evidence of crime they happen to see—evidence that is in “plain view,” as the law puts it.

Computers no doubt contain a lot of evidence of crime—financial records of fraudulent or other criminal activity, for example. But the criminal character of a financial spreadsheet is not likely to be obvious to an officer searching for evidence of a different crime. If it isn’t obvious, the officer cannot legally seize it.

The situation is different, though, if a computer drive contains child pornography. Federal law enforcement agents have a lot of experience investigating child pornography cases. They recognize the digital fingerprints the most common child pornography files leave on any electronic storage device. Hence an officer searching a computer—even an officer searching only for evidence of spying for China—will likely notice if she happens upon a child pornography file, and she will seize it.

Mr. Gartenlaub contested all of the allegations against him, but his lawyers were not allowed to examine the affidavit that led to the issuance of the search warrant. Because it was a FISA warrant, they never got to challenge the underlying claims that led to the search of his personal computers.

Many people may not see this situation as unfair. If the government catches a few child pornography collectors while casting its national security net, many may think, that is a side benefit. But FISA’s limitations on normal American privacy rights have been sold with the argument that they are required by national security—perhaps the gravest responsibility of any government. In my opinion, the courts are playing bait-and-switch when they allow any but national security crimes to be prosecuted through FISA’s hole in the Fourth Amendment.