emptywheel

Gorski: Computers function as banks and more. As a result, more sensitive for 4A particularity. If all of those files are deemed to be plain view, risk compounded here, bc of FISA, relaxed standards. Altho govt hasnt' described how they found child porn.

Gorski: Govt asserted this would result in rebuilding wall. Not correct. Use restriction on non-FI in no way affects govt's ability to communicate FI.

Anthony Lewis for US. "All matter of child porn organized w/in personal files." [Shorter govt: porn porn porn] Defendant can't show any error, let alone error that was plain or clear. FISA uses same standard but as to different facts.

Lewis: what FISA must be shown up are foreign power or agent of. On back end are minimization procedures, some imposed by court. Appropriate dissemation. Not like anything in Rule 41 context. [Key issue here: the FISC actually DOES do individualized modification of MPs]

Lewis: Scope issue raised first time on appeal. Why no error, let alone clear. Some of child porn contained names like 137 or 15, just numbers, no way to tell w/o examining them. Folders in which kept did not announce. Wardlaw: Wasn't there a folder?

Wardlaw: Why couldn't govt go get another warrant. Lewis: A reqt that agents stop a search and get materials declassified and approval to do so would be a problem. Truong defendant argued should be sole purpose.

Gould: Under FISA don't agents have to go full steam ahead, for practical purposes, can't pause for another warrant, abt why use restriction? Lewis: Statute itself. Minimization, does not require min of evidence of crime. In an number of FISA cases they have explicitly approved.

LEwis: on plain error rule not time to announce a new rule. Piersol: overhearing murder, exigency. What if you find money laundering evidence? You just go ahead and prosecute it? Lewis: If evidence of crime, does not require min. Other procedures limit. [Claims secret]

Note, what Piersol just described IS THE MANAFORT CASE.

Lewis: Plain view. While there is authority to support based on plain view, minimization procedures really supply the answer in FISA context. Plain view operates differently in FISA context, bc of back end of case. HE'S DEFENDING THE TOR APPLICATION HERE.

Piersol: We don't know how it was encountered. As District, if I don't know enough I'm going to have expert for myself for court if that issues gets presented. Lewis; District may want to know, if challenge is raised. Piersol: Unusual case in District bc there's no advocate

Piersol is a District Judge in ID, not a circuit judge. He's talking with the experience of a judge who has had to stand in for the adversarial position of the defendant. Lewis: District review not done in vacuum.

Lewis: District review was not an abuse. Piersol: We have to review what District court did. Adopted order verbatim which you submitted. We're reviewing de novo, not abuse of discretion. Lewis: Multiple Circuits have held. Piersol: We're this one tho.

Piersol: so we're supposed to disregard precedent in this circuit? Lewis: There is no precedent. Every circuit that has reached standard determined abuse of discretion. Franks: Defendant had access to a great deal of information.

Lewis: WRT sufficiency of evidence. Piersol: they didn't argue that except in briefs. Lewis; I'll move on. Cleared counsel should have review. FISA says necessity up front. [Cline's going to hit this I bet.]

Lewis: I believe I've touched on most of issues. Wardlaw: we're going to ask you to say after the hearing.

Cline: Govt position is it can't pause FI investigation long enough to get a warrant. Saying it can't do what CDT says it has to do. Cline Minimization is not a Fourth amendment exception.

Disclosure: in 39 year history, one court ordered disclosure. Never been disclosure. Look at legislative history. Congress clearly contemplated there wouldn't be disclosure. If ever case where disclosure warrant it'd be this case. cc: @KDbyProxy

Piersol: let's say PD org nationally had lawyer TS cleared, in these kinds of cases, could be special counsel for top secret portion. Another way to address? Cline: there could be a system of that. [Remember Cline is amicus for the court]