EFF Sues FBI For Refusing To Turn Over Documents About Its Geek Squad Informants
from the best-buys,-best-friends dept
A child porn indictment in California has led to a full-fledged examination of the FBI’s use of “private searches.” Private searches, performed by citizens, can be used to instigate investigations and obtain warrants. In this case, the private searches were performed by Best Buy Geek Squad members, who came across alleged child porn images while fixing the defendant’s computer.
Private searches during computer repairs are normal. But they’re not roughly analogous to searches performed with a warrant. Companies that repair electronic devices are legally required to report discovered child porn to law enforcement. What they’re not supposed to do, however, is dig through devices they’re repairing in hopes of finding something illegal.
Most techs don’t go looking for child porn. But the FBI’s close relationship with Best Buy turned private searches into searches performed by paid informants. Once government money is introduced into the equation, the search can no longer be considered “private.” The introduction of cash rewards also skews the incentives, possibly encouraging Geek Squad members to spend more time looking for illicit images than focusing on the repair job at hand.
Documents uncovered in this case strongly suggest the FBI has been using Best Buy repair center techs as confidential informants, paying them for their discoveries while claiming these warrantless, secondhand searches are nothing more than completely legal “private searches.”
The EFF wants to know what the FBI knows about its long-running Best Buy partnership. The FBI isn’t nearly as interested in making this information public. It sent a FOIA request to the FBI in early February. The FBI’s first response was a Glomar. From the EFF’s FOIA lawsuit [PDF]:
By letter to Plaintiff dated April 18, 2017, the FBI denied EFF’s request for agency records. The FBI stated, inter alia, that “it is the FBI’s policy to neither confirm nor deny the existence of any records which would tend to indicate or reveal whether an individual or organization is of investigatory interest to the FBI.”
The EFF immediately appealed this determination. Since then, the FBI has yet to respond. The EFF’s lawsuit seeks a better response to its FOIA request, as well as a ruling finding in favor of its requested fee waiver. The EFF’s decision to move forward with a FOIA lawsuit is the unfortunate result of the government’s disinterest in fulfilling its FOIA obligations. There’s hardly any action a citizen can take to speed up this process. Lawsuits are only marginally better than firing off reminder emails. Unfortunately, they’re also a lot more expensive.
There’s a good chance these documents — should they ever be released by the FBI — will show this sort of thing isn’t limited to Best Buy repair centers.
We think that the FBI’s use of Geek Squad informants is not an isolated event. Rather, it is a regular investigative tactic law enforcement employ to obtain digital evidence without first getting a warrant as the Fourth Amendment generally requires.
This bears watching. The FBI loves parallel construction and law enforcement in general loves anything that allows it to bypass obtaining warrants. Turning repair crews into informants serves these interests well.