Okay, I don’t know what you’re thinking. But the government might. And after a recent vote by Congress, they could know a lot more.
Keith used to work in a classified section of a company you’ve heard of, and probably flown-in. In fact, keeping it classified was part of his job. So, when the FBI came asking about how information made it out of his department and into the hands of the Chinese government, Kieth was the first to step-up and take responsibility. Not because he leaked it. But because it was his job to prevent leaks.
So you can probably imagine how surprised he was when the Department of Justice arrested him for possession of Child Sexual Abuse Material (CSAM), but offered to drop those charges if he took responsibility for the classified leak. Of course, he thought he had taken responsibility. Just not criminal responsibility, like the DOJ wanted him to.
Keith was my client. I got called by his criminal defense lawyer to see if there was any way of defending him from the CSAM charges. What I learned was that they found a file on a hard drive, in a closet, that hadn’t been accessed for years. So, I asked how they could have possibly found it.
Most recent CSAM cases come from online undercover investigations. People literally downloading, and sharing alleged sexual depictions of children. The questions are typically, who was using the device, what they knew, and did investigators actually identify the correct device? Occasionally, I have had issues challenging the search itself.
I came to learn that Keith might check-off every box. He was the subject of a FISA warrant. The FBI had been in his home twice, copied his hard drives, and planted bugs — all in pursuit of how the classified material from his department made it to China. Despite him traveling to China with his wife — a Chinese national — and following them both, 24/7 (so close that an agent rear-ended his wife’s car), the government found nothing. No evidence whatsoever.
Well, not exactly “nothing”. What they did find on one of those hard drives they copied — the one in the closet — was leverage.
The trick, when it came to his defense, was that we had no ability to challenge, or even investigate, most of the allegations. Why? Because of the nature of a FISA investigation. A lot was unknown to the defense, due to the sensitivity of classified documents. But the jury was allowed to know even less than we did.
Keith, as a security professional, made it a habit to remove hard drives from any old computer he was no longer using. He knew that even deleting data or reformatting a hard drive did not actually remove the data. So he just stacked old media in a closet at home. Some of it very old. And, from my investigation, not all of it was even his. He urged past girlfriends, their kids, his current wife, and practically everyone he knew, to do the same. When I asked him about his keeping old media, his response was, “Don’t you?”
Not having access to a warrant, or specific details of the search of his home, it was nearly impossible to backtrack, or audit the veracity of the FBI’s investigation.
In an ideal investigation, I am able to retrace nearly every step, from the Probable Cause used to convince a judge to sign a warrant, to every bit of pre-warrant investigation, to how the warrant was served, who entered, how they entered, where they were allowed to search, what they were allowed to search, what they seized, where they found it, who found it, who they gave it to, who investigated it, when, how, and so much more.
Not in Keith’s case. In Keith’s case, I had concerns that the drive the DOJ used to threaten him was even found in Keith’s home. It was, after all, almost immediately used as leverage, for the purposes of solving a bigger mystery.
After spending years trying to figure out how a classified file made it’s way to China, the FBI/DOJ decided to arrest Keith, and threaten to charge him with possession of CSAM, unless he’d like to admit to espionage. I know that probably sounds worse. But trust me, I have it on good authority that life behind bars is a lot less frightening when charged with almost anything other than being a pedophile.
Unfortunately, Keith didn’t fare well with a jury. As most people accused of that crime don’t.
By the time I came into the case, there was already an order not to mention a Foreign Intelligence Surveillance Act warrant. Or rather, a “warantless” surveillance.
It was my opinion that, if we were going to depend on being one of the 0.04% of Federal acquittals, it might be a good idea if the jury had the entire story.
Keith served only a few months in what he described as a fairly comfortable prison near the beach in California. By the time the trial was over, it seemed as though the judge, who did have the whole story, considered the charges not to have much more merit than I did.
Not so ironically, while serving his short sentence, the DOJ found the actual person who leaked the file, when he got caught doing it again, and admitted to the prior leak.
Keith pursued an appeal. And as his luck would have it, one was granted… years after he was released. Now, a convicted felon, more likely to be hired to work parking lot security than national security.
Coincidentally, I was with his appellate attorney, Tor Ekeland, the moment he received notice from the appellate court. We typically work almost 3000 miles apart. But, the day the good news came, we were meeting in Los Angeles to work on a DC Crypto case.
At the moment, I’m uncertain how much FISA argument the appellate court will allow. Of note: I was in court for the appeal. After making arguments, the government asked the court to have us excused from the room to discuss a matter of security, privately and without a public record. Something known as ex-parte. Which is also not generally not a power provided to the government.
The “Keith Story” is illustrated here as a way of contextualizing the [hopefully] unintended consequences of circumventing the Fourth Amendment. My narrative is based on factual events, of an actual person, but presented in a hypothetical context, as not to comment directly on an ongoing case.
I have previously lectured to state judges on this issue. Citing this case as an example. Balancing national security with personal liberty, it remains my opinion that so long as FISA continues to be renewed and expanded, only items found, directly relevant to the FISA application, should be allowed to be used in a criminal prosecution.
For example, in Keith’s case, the subject material leveraged for information could be used in that capacity, but not directly charged. Nothing would stop investigators from using that knowledge to attempt to develop a new case, based on an independent investigation. Just not one that benefits from expanded powers granted by FISA for national security purposes.
It remains my concern that simply having the power to conduct an expanded warantless search serves as an incentive to file more FISA applications based on less certain assertions, for the ultimate purposes of finding any evidence of any crime, with fewer Constitutional limitations.
What do you think? (“If you’ve got nothing to hide…” or is a government “legitimate only if it is effectively limited”?)
If you’d like to learn more about Keith’s case:
Ellen Nakashima was the first reporter I knew who was following the case. She probably has the most comprehensive coverage. This is her first interview with me on the case, before the FBI arrested someone else for the national security violation:
WA POST: How a federal spy case turned into a child pornography prosecution
https://www.washingtonpost.com/world/national-security/how-national-security-powers-are-underpinning-some-ordinary-criminal-cases/2016/04/05/1a7685f4-fa36-11e5-80e4-c381214de1a3_story.htmlHere’s one of the latest followups. (Available via free email registration.)
WA POST: A former Boeing manager suspected of spying for China says that he, like Carter Page, was the victim of a flawed national security investigation
https://www.washingtonpost.com/national-security/a-former-boeing-manager-suspected-of-spying-for-china-says-that-he-like-carter-page-was-the-victim-of-a-flawed-national-security-investigation/2020/02/18/9371dd60-4dd3-11ea-9b5c-eac5b16dafaa_story.html
AP NEWS: How a spy probe wound up as a child pornography prosecution
https://apnews.com/article/technology-child-pornography-united-states-government-6305e8ddfb5b4785ae5df5be3cff41e8