Martin Gottesfeld was featured by Michelle Malkin for defending Justina Pelletier  when she was maimed at Harvard-affiliated Boston Children’s Hospital (BCH), leading to his imprisonment without bail by a Harvard-affiliated judge and Obama-appointed prosecutors. See, the FreeMartyG Facebook page, and the @FreeMartyG Twitter account for more info. 

It turns out that while Boston FBI agents were busy not investigating the horrific fraud, perjury, and civil rights violations that tortured and paralyzed Justina Pelletier at Harvard-affiliated Boston Children’s Hospital (BCH), they had their hands full perjuring themselves to a federal magistrate in order to get a tap and trace order for my internet connection. They then used the results they obtained to ask a different, biased magistrate for a search warrant for my home — all because unlike FBI agent Michael W. Tunick, I wouldn’t let $2 billion BCH continue to endanger Justina’s life in order to protect its now less than stellar reputation.

You see, exactly a month after Justina finally went home to her family and badly needed mitochondrial disease treatments, the lack of which had left her in constant agony for over a year and still confined to a wheel chair today, Agent Tunick was in front of federal Magistrate Judge Jenifer Boal, who specialized in prosecuting health care fraud before taking the bench. However, instead of pursuing justice for Justina, the Boston FBI was asking for Boal’s approval to install a pen register/tap and trace (PRTT) device on my internet connection.

Judge Jennifer Boal in 2011 profile by Mass Lawyers Weekly

In order for a judge to sign off on such a request, the government does not need to show probable cause, but rather merely that the information it’s likely to collect is relevant to an ongoing criminal investigation. However, unlike a regular wiretap, which would require probable cause and a warrant, the PRTT isn’t supposed to provide the government with the contents of any communications. Rather the black suits are only authorized to gather the identities of the parties communicating as well as limited metadata, like when the conversations took place and for how long they lasted. In fact, with only a PRTT, agents are specifically forbidden by law from collecting any information about the contents of what the parties sent to each other. The relevant federal statute (18 U.S.C.  § 2510[8]) says that the material that is off-limits with such a warrantless authorization “includes any information concerning a substance, purport or meaning” of communications.

However, Agent Tunick swore under oath  to Magistrate Boal that TCP and UDP port numbers are the type of dialing, routing, addressing and signaling information eligible to the FBI under a PRTT order and not contents. Neither is true, though it’s nearly certain Boal didn’t know so. Most people who aren’t familiar with the binary ones and zeros of computer networking wouldn’t, but as an agent on the Boston FBI’s cybercrime squad (CCS), who also described his technical expertise on the PRTT application’s sworn affidavit, Tunick almost certainly did.

Further, since applications for PRTTs, wiretaps and search warrants are heard “ex parte,” meaning the government is the only party in the room with the judge, there’s no one else present to challenge the technical assertions of its agents, which the majority of magistrates wouldn’t think to question on their own.

To most other people, especially in Boston, the FBI lying (or worse) isn’t too much of a surprise. What shocked me however was their audacity to do so and then try to blame the so-called “good faith exception” to the 4th Amendment. Like TCP and UDP port numbers, the majority of Americans have never heard of the good faith exception, and the federal government likes it that way because it’s one of the dirtiest tricks up its sleeve.

You see, the good faith exception allows federal prosecutors to use evidence obtained in violation of the 4th Amendment as long as the law enforcement agents who acted unlawfully are found to have done so in “good faith,” based on a warrant, even if that warrant is later ruled unconstitutional.

You read that right.

The theory behind the exception is that the 4th Amendment doesn’t explicitly say that evidence obtained in violation of the constitution must be thrown out and since law enforcement acted on what it thought was a valid court order, excluding evidence obtained with a warrant that was only later found to have been invalid theoretically wouldn’t deter future government misconduct. You see, the same courts and that had no problem conjuring up a lot of unwritten and patently ludicrous language that doesn’t actually exist in order to erode the 2nd Amendment refused to infer the most common sense unwritten conclusion about the 4th amendment, that evidence obtained from a bogus search must be thrown out. In his 1928 dissent in the case that opened this Pandora’s box, noted Supreme Court Justice Oliver Wendell Holmes rightly lamented:

Nor should we so easily concede the existence of a constitutional violation for which there is no remedy…To do so is to convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution requires more; it requires a remedy…If the Court’s new rule is to be followed, the Bill of Rights should be renamed.

Thankfully for me though, this constitutional train wreck does not apply in cases like mine, where the government knew or should have known there were problems with its warrant, which I can show with technical documents, computer networking experts, and the experience Agent Tunick swore he has on the written PRTT and search warrant applications. Most defendants aren’t this fortunate. After all, there is no record defendants can point to of what is said aloud in judges’ chambers when the government is applying for these orders and the burden is on defendants to prove bad faith on the part of the government, an often impossible task no matter how egregious its violation of the 4th Amendment.

So, now please wish me luck convincing a Boston federal court of all this. I’ll let you know how it goes.