emptywheel

Cline; intersection of 2 dynamic areas of law: 4A implications of computers and other devices and FISA, which does away w/traditional notions of probable cause.

Cline: FISA produced 2 day search, followed by imaging of his computers. Images taken back to lab, reviewed for months, no evidence of foreign intelligence, what was found instead was child porn. Evidence used to obtain ordinary warrant and seized again.

Cline: Ultimately Gartenlaub prosecuted not for foreign intel, bc not engaged in any, but for child porn. We address Jan 2014 search, derivatively the August search, Jan search really focus.

We've never had access to underlying order. When govt went before court, had to argue agent of foreign power. Foreign power had ot have been China. Had to be in principle agent relationship with foreign power. Govt somehow conviced FISC he was in principle agent rel w/China.

Cline: Disabled from being able to argue, we dispute there was probable cause. Also contend that there are likely to be Franks issues here. There is no evidence, never the case he was functioning as agent of foreign power.

Cline; This case highlights in most excruciating way tensions bt FISA--the way it's been interpreted--and Franks in absence of disclosure.

Cline: You can read app all day long and you'll never know if they're true, or if there are material omissions. Scope argument. What happened in this case is exactly scenario that both majority and concurrence in CDT case warned against. Search for particular purpose.

Cline: Altho def of FI may be broad, it certainly doesn't cover child pornography. Govt theory is FI info could be hidden anywhere, so we can search everything. Again bc of secrecy, we don't know how they did the search