Legal Issues

by Tim Cushing


Filed Under:
fbi, geek squad, informants, searches, warrants

Companies:
best buy



The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity

from the maybe-these-are-the-'smart-people'-who-can-fix-Comey's-encryption-&# dept

Law enforcement has a number of informants working for it and the companies that already pay their paychecks, like UPS, for example. It also has a number of government employees working for the TSA, keeping their eyes peeled for "suspicious" amounts of cash it can swoop in and seize.

Unsurprisingly, the FBI also has a number of paid informants. Some of these informants apparently work at Best Buy -- Geek Squad by day, government informants by… well, also by day.

According to court records, Geek Squad technician John "Trey" Westphal, an FBI informant, reported he accidentally located on Rettenmaier's computer an image of "a fully nude, white prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck." Westphal notified his boss, Justin Meade, also an FBI informant, who alerted colleague Randall Ratliff, another FBI informant at Best Buy, as well as the FBI. Claiming the image met the definition of child pornography and was tied to a series of illicit pictures known as the "Jenny" shots, agent Tracey Riley seized the hard drive.

Not necessarily a problem, considering companies performing computer/electronic device repair are legally required to report discovered child porn to law enforcement. The difference here is the paycheck. This Geek Squad member had been paid $500 for digging around in customers' computers and reporting his findings to the FBI. That 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.

More of a problem is the FBI's tactics. While it possibly could have simply pointed to the legal obligation Best Buy has to report discovered child porn, it proactively destroyed this argument by apparently trying to cover up the origin of its investigation, as well as a couple of warrantless searches.

Setting aside the issue of whether the search of Rettenmaier's computer constituted an illegal search by private individuals acting as government agents, the FBI undertook a series of dishonest measures in hopes of building a case, according to James D. Riddet, Rettenmaier's San Clemente-based defense attorney. Riddet says agents conducted two additional searches of the computer without obtaining necessary warrants, lied to trick a federal magistrate judge into authorizing a search warrant, then tried to cover up their misdeeds by initially hiding records.

The "private search" issue is mentioned briefly in OC Weekly's report, but should be examined more closely. Private searches are acceptable, but the introduction of cash payments, as well as the FBI having an official liaison with Best Buy suggests the searches aren't really "private." Instead, the FBI appears to be using private searches to route around warrant requirements. That's not permissible and even the FBI's belief that going after the "worst of worst" isn't going to be enough to salvage these warrantless searches.

As Andrew Fleischman points out at Fault Lines, the government's spin on the paid "private search" issue -- that it's "wild speculation" the Best Buy employee was acting as a paid informant when he discovered the child porn -- doesn't hold up if the situation is reversed. AUSA Anthony Brown's defensive statement is nothing more than the noise of a double standard being erected.

Flipping the script for a minute, would an AUSA say it was “wild speculation” that a man was a drug dealer when phone records showed he regularly contacted a distributor, he was listed as a drug dealer in a special book of drug dealers, and he had received $500.00 for drugs? Sorry to break it to you, Mr. Brown, but once you start getting paid for something, it’s tough to argue you’re just doing it for the love of the game.

In addition to these problems, the file discovered by the Best Buy tech was in unallocated space… something that points to almost nothing, legally-speaking.

[I]n Rettenmaier's case, the alleged "Jenny" image was found on unallocated "trash" space, meaning it could only be retrieved by "carving" with costly, highly sophisticated forensics tools. In other words, it's arguable a computer's owner wouldn't know of its existence. (For example, malware can secretly implant files.) Worse for the FBI, a federal appellate court unequivocally declared in February 2011 (USA v. Andrew Flyer) that pictures found on unallocated space did not constitute knowing possession because it is impossible to determine when, why or who downloaded them.

This important detail was apparently glossed over in the FBI's warrant application to search Rettenmaier's home and personal devices.

In hopes of overcoming this obstacle, they performed a sleight-of-hand maneuver, according to Riddet. The agents simply didn't alert Judge Marc Goldman that the image in question had been buried in unallocated space and, thus, secured deceitful authorization for a February 2012 raid on Rettenmaier's Laguna Niguel residence.

Courts have shown an often-excessive amount of empathy for the government's "outrageous" behavior when pursuing criminals. The fact that there's child porn involved budges the needle in the government's direction, but the obstacles the FBI has placed in its own way through its deceptive behavior may prevent it from salvaging this case.

The case is already on very shaky ground, with the presiding judge questioning agents' "odd memory losses," noting several discrepancies between the FBI's reports and its testimony, and its "perplexing" opposition to turning over documents the defense has requested.

In any event, it appears the FBI has a vast network of informants -- paid or otherwise -- working for both private companies and the federal government. Considering the FBI is already the beneficiary of legal reporting requirements, this move seems ill-advised. It jeopardizes the legitimacy of the evidence, even before the FBI engages in the sort of self-sabotaging acts it appears to have done here.

Underneath it all is the perplexing and disturbing aversion to adhering to the Fourth Amendment we've seen time and time again from law enforcement agencies, both at local and federal levels. Anything that can be done to avoid seeking a warrant, and anything that creates an obfuscatory paper trail, is deployed to make sure the accused faces an even more uphill battle once they arrive in court.


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  1. identicon
    Uncommon Sense, 9 Jan 2017 @ 3:31pm

    Re: Re:

    Not exactly, YES there's illegal things they can find, BUT if they were searching for ART that's not illegal.

    Sally Mann, David Hamilton and Jock Sturgess have all been producing books their entire photographic lives showing underage girls nude.

    In fact you can buy those books right now at Boarders or other places. They're protected by the supreme court. So your point is about "intent"

    This also must be compared with the Dost test's 6 points to determine if something is porn. Keep in mind yes people can be sexually attracted to anything regardless of human or animal.

    Let me validate your point. YES there's people who want something illegal. You're absolutely right. BUT the point is strictly for people who weren't breaking any laws.

    A girl nude with just a collar may be a photo taken by her parents at a nudist camp if they're just doing something silly. SURE some jackass doesn't have really any real excuse why to have possession of it, but it.

    Huffington Post showed nude images last year of a children in an article about the wonders of fatherhood. And all his pictures were of his kids nude playing in the yard. black and white images, BUT the supreme court doesn't differentiate between color vs. black and white.

    You're 100% correct on the aspect that if they were searching for something illegal their INTENT was to have something that violates the 18 USC 2257 and 2257a

    BUT due to the fact there's also no legal defined term for art modeling of all ages that people will search for that term. so this creates the impression they're seeking to do something of criminal action.

    HOW DO YOU KNOW... if there's dozens of images that cross the line between art and CRIME.

    So yes you're right, we can tell. However it's also not the courts responsibility to determine what's legal in your case. YOU need to be armed with this information.

    Did you know MetArt website went 18 up voluntarily and before that they were legally producing underage girls nude?

    The problem with most legal issues is that so few people really study the depths of the laws (I'm a legal bookworm)

    In the 90% there was many model sites of girls of all ages modeling in lingerie and even sheer stuff. Cali Sky was 14 when she was modeling nude, but not showing genitals, just paint on her nipples. She had her own website at 16 and is still doing tease modeling.

    Jimmy Stephens was a producer of many models websites and images and denver police tried to charge him with CP production with 8000 years jailtime.

    He proved that none of the images were porn because porn requires either focus on sexual areas (Meaning an innocent picture that's cropped may turn into porn once cropped)
    or sexual penetration or images created strictly for sexual enticement of the viewer.

    CREEPY FACTOR. yes people were paying members of those sites. They had to claim they were a modeling agent or photographer. See where the line turns gray.

    I thought of doing a documentary on this, so I did a shit ton of research.

    So Jimmy Stephens (James grady is his real name) was found completely innocent when he proved girls post images just like what he posted by themselves and facebook charges advertisers, so for pay is for pay. He proved that the supreme court decisions upheld what was art.

    He also proved that Calvin Klein showed Brooke Shields covering her tits nude. So advertisers are always using the limits.

    Thora Burch was topless in a American Beauty. She was 16.
    Hollywood has had many underage girls in films. Brooke Sheilds in Blue Lagoon at 15 nude, she was in a George Burns film nude getting out of the trunk of his car at 14.

    You're right about the intent. As we know from criminal law the SPECIFIC INTENT (mens rhea) is the determining factor if something was a crime. Criminal Intent.

    This is often found in the questioning. What were you looking for.

    ALSO a unique story... Did you read my comment about Little Lulu? A man was charged with CP for a DVD of an adult model. The prosecution didn't even care to research it.

    Another unique story police were performing a sting operation on a man's router. However someone was contacting them THROUGH his router. So he downloaded hundreds of CP images (yes they'll actually provide them, imagine how screwed up that is)

    And therefore the police gave out a bunch of images that shouldn't be out there but only found out when they tried to arrest the homeowner.

    Prosecute the criminal, but let's not criminalize those who didn't show intent for criminal activity with stuff that doesn't rise to the level of a crime.

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