In fact, according to these records, the FBI actually trained Best Buy employees in law enforcement tactics, gave them lists of targeted individuals, and actively encouraged computer repair technicians to search customers’ computers for evidence.
There has never been any question that computer technicians occasionally discover and report suspicious data, such as child pornography, to law enforcement. However, OC Weekly reports that “more than a dozen summaries of FBI memoranda filed inside Orange County’s Ronald Reagan Federal Courthouse this month in USA v. Mark Rettenmaier contradict the official line” that such discoveries were always accidental:
Other records show how Meade’s job gave him “excellent and frequent” access for “several years” to computers belonging to unwitting Best Buy customers, though agents considered him “underutilized” and wanted him “tasked” to search devices “on a more consistent basis.”
To enhance the Geek Squad role as a “tripwire” for the agency, another FBI record voiced the opinion that agents should “schedule regular meetings” with Meade “to ensure he is reporting.”
A Feb. 27, 2008, agency document memorialized plans “seeking the training of the Geek Squad Facility technicians designed to help them identify what type of files and/or images would necessitate a call to the FBI.”
These records came to light because a gynecologist named Mark Rettenmaier was charged with possessing child pornography after the Geek Squad discovered an image on his computer in the course of performing repairs Rettenmaier paid for. Rettenmaier’s defense attorney, James D. Riddet, has charged the government with outrageous conduct, such as offering Best Buy employees a $500 bounty for discovering actionable evidence on customers’ computers.
There is also a complex technical issue involved in the Rettenmaier case, because the offending image — which OC Weekly notes might not even meet the technical definition of child pornography — was hidden in a region of the computer’s data storage that is not normally accessible to users. Defendants in electronic pornography cases often argue, with varying degrees of plausibility, that the images were planted on their computers without their knowledge by pornographers who use hacking tools to store their illicit wares on the machines of unsuspecting victims.
In this case, prosecutors seem to have encountered difficulty proving that Rettenmaier possesses the knowledge or software tools to hide illicit files in the unallocated storage space on his computer. There is also court precedent for the argument that files stored in such nominally inaccessible sectors of a computer system cannot be legally proven to be “knowing possessions” of the computer’s owner.
The key contention of defense attorney Riddet is that the Geek Squad became a government entity due to its close relationship with the FBI, and therefore “its employees’ searches are warrantless government searches in violation of the Fourth Amendment.”
Reporter R. Scott Moxley claims that FBI agents became “visibly angered” over his continued coverage of the case at a pretrial hearing.
“The case raises issues about privacy and the government use of informants. If a customer turns over their computer for repair, do they forfeit their expectation of privacy, and their Fourth Amendment protection from unreasonable searches? And if an informant is paid, does it compromise their credibility or effectively convert them into an agent of the government?” the Washington Post asks.
As the Post observes, Rettenmaier signed a standard Best Buy service order for his computer repairs that explicitly waived his right to invoke the Fourth Amendment if “any product containing child pornography” was discovered on his computer and turned over to the authorities.
Much will hinge on the judge’s view of the relationship between the company’s technicians and the FBI. The volume of emails describing close coordination is overwhelming, and many of them are quite clear about ongoing direction from the Bureau to Geek Squad technicians. As the Washington Post puts it, the FBI “cultivated eight ‘confidential human sources’ in the Geek Squad over a four-year period, with all of them receiving some payment.”
TechDirt speculates that money changing hands will cause legal problems for the FBI, since it “changes the motivation from legal obligation to a chance to earn extra cash by digging around in files not essential to the repair work at hand.” Can these searches fairly be described as “private” if the technicians are collecting payment from the government for their services?
Furthermore, the FBI’s effort to conceal the true nature of its relationship with the Geek Squad may displease the judge. TechDirt notes defense attorney Riddet has also accused FBI agents of lying to a federal magistrate to obtain a search warrant.
Mike Wehner at BGR wonders what the fallout for Best Buy might be, because customers are already conducting a “huge exercise in trust” by allowing corporate technicians to handle their computers. Some customers are likely to feel that Best Buy has “seriously broken that trust” by secretly teaming with the FBI to “perform completely warrantless searches of customer computers with zero probably cause or reason to do so.
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