Wednesday, April 06, 2016

Questionable FBI search motivated by espionage concerns leads to child porn conviction

It is possible for law enforcement, especially federal, to search premises without warrants or less 4th Amendment protection than usual, for terrorism or espionage related evidence, and then prosecute someone for “ordinary” domestic crimes, especially child pornography.

Ellen Nakashima reports on the front page of the Washington Post, Wednesday April 6, 2016, “Spy probe morphed into child porn case

The narrative started in Feb, 2013 when the FBI questioned a California  Boeing employee Keith Gartenlaub about a mystery email apparently indicating Chinese espionage that he knew nothing about (his wife is Chinese).  Gartenlaub suspected nothing involving him when he heard about the arrest of a Chinese businessman sixteen months later, in June 2014. But in January 2014, while he and his wife were in Shanghai, the FBI surreptitiously searched him home.  In August, he was arrested for supposed child pornography found on home computers or hard or thumb drives. He was convicted of a possession offense in December 2015 and still awaits sentencing, for possibly up to ten years.

The circumstances suggest that the c.p. was never downloaded but could have been planted or copied deliberately. There would be obvious questions about whether he was framed, either by the government or maybe the Chinese, maybe by a burglar, or maybe by malware.

But the article focused on whether the Fourth Amendment was violated.

But the question of criminal liability for possession of material one does not know about is still troubling.  Possession is rarely treated as an “absolute liability” offense as it used to be;  usually there is some element of mens rea, and defense will often try to show evidence of malware or criminal activity by others.  This is a particularly disturbing incident.

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