Court Documents Appear To Confirm The FBI Is Using Best Buy Techs To Perform Warrantless Searches For It

from the private-search-loophole dept

As we covered last week, the FBI has apparently been paying Best Buy Geek Squad members in exchange for tips about illegal material discovered on customers' computers. This is problematic for a couple of reasons.

First, adding a financial incentive could lead to Best Buy employees digging around in users' computers in hopes of finding something to turn in, rather than limiting themselves to the job at hand: repairing the device.

Second, while companies are legally obligated to report the discovery of child porn to law enforcement, this occurs as a "private search." As such, it's perfectly legal and can result in the probable cause needed to perform a forensic search of the computer, as well as (possibly) any other electronic devices the customer owns. But when the FBI turns Best Buy employees into confidential informants -- paid or not --it's no longer a private search. It's a third-party search at the government's request. The government can't task private individuals with performing warrantless searches on its behalf -- at least not if it wants to hold onto the evidence.

The government is arguing that there was nothing wrong with the FBI's relationship with Best Buy. This is being argued despite the growing amount of evidence showing the FBI's role in Best Buy searches of computers is anything but passive.

One former agent confirms [PDF] in her declaration that the employee who alerted the FBI to alleged child pornography found on the computer of the defendant in this case, had been signed up by the agency as a “confidential human source” (CHS) in 2009 — two years before the offending content was discovered in this case — but contends that this worker was “never asked” to “search for child pornography or evidence of any other crime on behalf of the FBI.”

However, in a Dec. 19 order [PDF] in this case, the judge notes that emailed communications may hint at a deeper connection between the agency and the Geek Squadder.

For instance, in Oct. 2009, this agent emailed the Best Buy staffer to set up a meeting “to discuss some other ideas for collaboration.” The since-retired agent now says she has no “independent recollection of what ‘collaboration'” refers to in that email, blaming her memory lapse on brain damage caused by Lyme disease.

Whatever the case may be, the documents do seem to show what Mark Rettenmaier, the defendant at the center of this case, alleges they do: a close partnership between the FBI and Best Buy that has gone on for years.

Judge Cormac Carney's ruling on Rettenmaier's demand for document production from the FBI indicates that what he's seen so far (many of the documents handed over by the FBI to date are under seal) points in this direction.

According to the FBI, [Best Buy employee] Meade was a CHS [confidential human source] for two periods of time—October 2008 to January 2009 and November 2009 to November 2012. During the first CHS period, Meade worked with FBI Agent Richard T. Boswell. (See Bates 1123; Dkt. 152 at 6.) Before the second CHS period, Agent Jennifer Cardwell took over for Agent Boswell (Agent Riley took over for Agent Cardwell in July 2010 (Bates 1028)). (Bates 1122–23.) Meade estimates that he contacted the FBI reporting child pornography approximately six to nine times per year. (Bates 544–45.) Though the FBI has had eight different CHS at Best Buy’s Kentucky facility, at the time when Best Buy had Rettenmaier’s hard drive, only Meade and Ratliff were connected to the FBI. (Dkt. 152 at 6.) Both Ratliff and Meade received payment from the FBI; every CHS prior to February 2012 received payment.

The government is refusing to hand over any more information that may shed more light on this relationship, but Judge Carney isn't going to let it get away with it. The government claims any such evidence, if produced, would only "undermine" Rettenmaier's "unsupported argument" about the FBI/Best Buy BFF situation. Judge Carney basically says we won't know until we see it, will we?

The Court cannot determine whether Rettenmaier’s “unsupported” argument has merit as long as the Government refuses to produce the evidence that may support it; the Government’s hope that the evidence will undermine Rettenmaier’s motion does not exempt its production.

The ruling almost completely denies the government's motion to quash, which means that the documents demanded -- if they exist -- will have to be turned over to the defendant. Most will probably be filed under seal, but some are bound to escape the FBI's desire for complete secrecy. What leaks out around the edges will be interesting, and mostly sussed out through defense motions and judicial orders. If the FBI is treating private companies' employees as confidential informants, then it's basically utilizing the private sector to perform warrantless searches for it.




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  • identicon
    Anonymous Coward, 12 Jan 2017 @ 6:35am

    State Actors

    From wikipedia:

    In United States law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating certain rights and freedoms.

    Although at first blush the term would seem to include only persons who are directly employed by the state, the United States Supreme Court has interpreted these amendments and laws passed pursuant to them to cover many persons who have only an indirect relationship with the government. Controversies have arisen, for example, over whether private companies that run towns (the "company-town") and prisons (traditionally a state function) can be held liable as state actors when they violate fundamental civil rights. This question remains unresolved, but the Supreme Court has held private citizens to be liable as state actors when they conspire with government officials to deprive people of their rights.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 12 Jan 2017 @ 6:46am

    If a private entity is doing something for the Government AND being paid on top of it then it is representing the State in that specific task. It's only natural they are subject to the same restrictions the Government is. Hopefully this venue of warrantlessly snooping on other people equipment is closed asap.

    reply to this | link to this | view in chronology ]

    • icon
      Jeremy Lyman (profile), 12 Jan 2017 @ 8:31am

      Re:

      Seems like they've seen too many episodes of "cop consultant" show where the "not cops" go out an violate all kinds of laws/rights and then report back where the evidence is likely hiding.

      Great entertainment; poor due process.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 6:54am

    Job opportunity

    Yeah, I'm applying for a job at Best Buy.

    I get paid to hunt for porn and then really take the time to determine whether it's good stuff or bad.

    With some luck there are passwords and other goodies on those computers too.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 7:03am

    This concerns me as I can see unscrupulous Geek Squad members keeping a cache of incriminating evidence on hand to plant on people's computers in an effort to claim the monetary incentive for finding it.

    I never trusted Geek Squad to be good technicians or even have a lot of integrity, but they are completely and utterly untrustworthy now and have lost all credibility.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2017 @ 7:09am

      Re:

      Chain of custody is a huge concern especially when people are rewarded for positive results only. This is why you have the right to face your accuser.

      reply to this | link to this | view in chronology ]

  • icon
    cpaintnogood (profile), 12 Jan 2017 @ 7:14am

    Yeeeeeeeah.....

    Back in the 90s, I was a tech. Not at Best Buy, but at a few local computer shacks and at one bigger chain store. Your typical post-high-school jobs for a nerdy kid.

    Every once in a while, we'd run across a porn stash on a customer's computer. Not intentionally, but people leave stuff laying around on the desktop, and you would see porn folders pop up from time to time cloning a filesystem, or something like that. Yes, we would sneak a peek sometimes - I mean, free porn, and back then modems were not so fast. The best was when someone had a really good MP3 trove off of Napster, I mean, gigabytes took a LONG TIME to get to you otherwise.

    Well, it happens. If you are paying someone to dig through your computer and recover a hard drive, we are going to randomly click through your folders if for no other reason than to make sure that your data is still intact. IDGAF about your family photos, or personal documents, or whatever. Plus, you are handing your computer to kids that probably got the job from developing their tech skills doing dirt at school.

    In any case, once, I found a stash of kiddie porn. Just lying on the desktop, too, not even concealed. Not a pleasant thing... I'm not taking about "Officer, I swear she said she was 18" porn, I am talking about children being raped. Horrible stuff. We called the cops, the cops called the feds, they staked out our backroom all day, coached us on what was going to happen, what to say when we called the dude to pick up the computer, the whole bit. Dude got arrested very quietly in the back of the store, and I really feel like the world is a better place with that creep locked away. Hopefully he got some help, or at least, was prevented from encouraging / participating in horrific child abuse for a while.

    So, normally I am a strong proponent of civil rights, search and seizure laws need to be tightened, &c, &c, but, fuck that guy. You got CP on your box, you need to be taught the error of your ways. Some lines, you do not cross.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2017 @ 12:10pm

      Re:

      > Well, it happens.

      That's a pretty shitty justification for being a scumbag.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2017 @ 12:43pm

      Re:

      Yeah, i know what you mean. I once found some murder movies on a dude's computer where people were getting shot and killed in gunfights and such. I tried calling the cops in the hopes that he would get some help, or at least, be prevented from encouraging / participating in murder for a while. The cops just laughed at me. Murder is apparently not as bad as porn.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 7:26am

    This is just validates me not stepping foot in Best Buy for the past ten years. Horrible company.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 12 Jan 2017 @ 11:09am

      Re:

      I have avoided Best Buy since at least the early 2000's.

      The first bad stories I heard were on Slashdot. For example some guy trying to return a video card that was misrepresented what it did, there was a disagreement about a technical term used in marketing, or some such. He was arrested. I don't remember details, except that from then on I didn't go to Best Buy.

      Stories continued to surface. This one I remember had photographic evidence. Best Buy was trying to sell their set up and "optimization" service. You buy this big expensive TV, but if you want it to look good, you need to hire our geeks to set it up for you. How Best Buy promoted it was to show two identical tvs, but one was tuned to an SD channel and the other tuned to the corresponding HD channel. But they insisted that the quality improvement was due to how they set it up.

      I'm sure these could be instances of bad behavior at individual stores.

      However I once went to a nearby store to look at some specific product. I was bombarded by sales droids trying to sell me something else. And pretty high pressure as if they had some mandatory quota or a "survivor" type competition on who would remain employed. It did not improve my opinion of Best Buy.

      I understand that they have corrected a lot of these problems. But I still don't go there.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2017 @ 12:37pm

      Re:

      Back in the day they actually provided a service. They had people in departments who frequently knew what they were talking about. They carried low price items that I needed.

      I should have stopped going after they replaced everyone with min wage labour.

      I did stop going after they replaced all of the cheap quality accessories (think Ethernet/HDMI cables) with overpriced crap like Monster and their internal brand.

      reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 12 Jan 2017 @ 7:31am

    While the production of photographic child pornography is anathema, far more dangerous to the nation are the spies embedded in the the FBI which go undetected when they have red flags spouting from their ears -- Robert Hansen for one.

    It is easy to convict a reputed pedophile, guilty or not, because of the atrocity of the crime. But it seems that few are willing to believe that alphabet agency members are spies, or that police routinely murder and violate the rights of citizens.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 12 Jan 2017 @ 11:14am

      Re:

      It was once hard to believe.

      Today it's not so difficult to believe.

      Some police departments seem to recognize that they have or had a problem. Others are in denial.

      In some cases, the problem is at the individual officer level, while the supervisors know better. They tell the lower ranking officer "of course he can video tape in this public place".

      reply to this | link to this | view in chronology ]

  • identicon
    DC Pathogen, 12 Jan 2017 @ 7:36am

    Assume all computer service/repair shops are scams

    Get your cousin's nephew's brother-in-law (or whoever your family nerd is) to fix it.

    Just make sure to have your milf wife or hot G/F (appropriately attired for the pool) hanging around and showing off so the knowledgeable tech. will come back next time.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2017 @ 11:24am

      Re: Assume all computer service/repair shops are scams

      Make sure the nerd is interesting in looking at females.

      Maybe a better approach is to treat the nerd with some respect. Maybe trade services. I know how to fix a computer, you know how to fix a broken screen door closer.

      In this millennium, nerd is a respectable title. People that make the world go around. In the previous millennium, nerd was a pejorative.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Jan 2017 @ 12:48pm

        Re: Re: Assume all computer service/repair shops are scams

        > I know how to fix a computer, you know how to fix a broken screen door closer.

        If a screen door closer is complicated for them, they're not getting near my computer.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 7:42am

    The government claims any such evidence, if produced, would only "undermine" Rettenmaier's "unsupported argument

    This fits in with the DOJ attitude of:-

    We have evidence that shows thew accused is guilty, we will not produce it, so trust us and convict them.

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 12 Jan 2017 @ 7:51am

    What has Best Buy had to say about all this?

    reply to this | link to this | view in chronology ]

    • icon
      Arthur Moore (profile), 12 Jan 2017 @ 8:08am

      Re: What has Best Buy had to say about all this?

      That they cooperate with law enforcement as legally required, but don't hire informants.

      At the least I expect them to fire the employee. I also expect them to try whatever legal wrangling they can to ferret out all the other informants and fire them as well.

      It's a huge black eye to the company. They've always been known to be scummy as far as pricing and diagnosing issues goes. If they're also associated with the FBI to this extent they may lose even more business.

      On a minor side note, if the informant's name's been revealed I doubt he'll be able to get work in a technical field outside of law enforcement or government contractor.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 12 Jan 2017 @ 1:12pm

        Not singular, plural

        Though the FBI has had eight different CHS at Best Buy’s Kentucky facility,

        Employees, they had eight informants in a single store, and the previous article talked about three in a single store. If BB wants to clear out the informants they are going to have to get rid of a lot of people if these two stories are any indication.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 8:06am

    Another side to this discussion: When do pc techs become mandated reporters?

    reply to this | link to this | view in chronology ]

    • icon
      Arthur Moore (profile), 12 Jan 2017 @ 8:14am

      Re: When do pc techs become mandated reporters?

      Whenever they find Child Porn. Just like doctors must inform law enforcement about people who they believe are going to commit self harm, or harm others.

      They're regulations that make sense, but have some nasty side effects. Someone's feeling suicidal and goes to get help. Hope they like being naked in prison, while not being allowed to sleep.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Jan 2017 @ 8:54am

        Re: Re: When do pc techs become mandated reporters?

        By law they are not required to report because they do not come under the one of the defining categories of professions that are required to report. In about a third of the states there are relatively new laws in place that require all regardless of profession to report, although in the other states anyone may volunteer to report. There is also the matter of contracts, where clients may have an expectation of privacy; if the company contract specifically states (and I don't know if it actually does) they will report under specified conditions then that expectation becomes void as it is agreed upon prior to work commencing. Does payment to the employee come as a reward for reporting, an encouragement to report, or is there a W-2 involved?

        reply to this | link to this | view in chronology ]

      • icon
        Groaker (profile), 12 Jan 2017 @ 9:08am

        Re: Re: When do pc techs become mandated reporters?

        This of course gives every MD the right to strip search a child to see if they are being sexually abused. It further allows them to sexually abuse any child, and claim that the parents, teacher, pastor or some other third part committed the act.

        Once a drive is out of the possession of its owner, any information can be planted on it, and made to look like it was planted at any most any time since the the invention of the PC, or at just about anytime in the life of the universe depending upon the software.

        What is to stop anyone who has access to a computer
        and has a grudge against another, from planting such porn? Or perhaps just for LOLS -- not unlike the Salem Witch Trials. Or wants to make a few extra bucks? For a more recent examples see:


        Especially of interest is:

        "McMartin Preschool[edit]
        Main article: McMartin preschool trial
        The McMartin Preschool trial started in August 1983 when Judy Johnson, the mother of a  2 1⁄2-year-old boy, reported to the police that her son was abused by Raymond Buckey at the McMartin Preschool in Manhattan Beach, California.[1] After seven years of criminal trials, no convictions were obtained, and all charges were dropped in 1990. As of 2006, it is the longest and most expensive criminal trial in the history of the United States.[1] The accusations involved hidden tunnels, killing animals, Satan worship, and orgies.[4] Judy Johnson was diagnosed with acute schizophrenia[5][6] and in 1986 was found dead in her home from complications of chronic alcoholism.[7] Buckey and his mother, Peggy McMartin, were eventually released without any charges. In 2005 one of the testifying children retracted his testimony and said he lied, to protect his younger siblings and to please his parents.[8][9]

        In The Devil in the Nursery in 2001, Margaret Talbot for The New York Times summarized the case:

        When you once believed something that now strikes you as absurd, even unhinged, it can be almost impossible to summon that feeling of credulity again. Maybe that is why it is easier for most of us to forget, rather than to try and explain, the Satanic-abuse scare that gripped this country in the early 80s – the myth that Devil-worshipers had set up shop in our day-care centers, where their clever adepts were raping and sodomizing children, practicing ritual sacrifice, shedding their clothes, drinking blood and eating feces, all unnoticed by parents, neighbors and the authorities.[10]

        Also claimed were murders of infants, though none were reported missing, slaughters of elephants and giraffes. Children claimed they had knives and forks inserted into their rectums, though no parent ever found blood on the children's clothes, or checked their nether regions. Yet all this and more was believed no matter how inane.

        https://en.wikipedia.org/wiki/Day-care_sex-abuse_hysteria


        https://usnews.newsvine.com/_news/201 2/05/21/11756575-researchers-more-than-2000-false-convictions-in-past-23-years?lite


        Without a forensic chain of custody, how can anyone believe such evidence. People who believe that computers are magic boxes I suppose, and those willing to burn and hang witches.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 8:07am

    But wait...

    So in the case of a Geek Squad "technician" what training have they had as far as computer forensics?

    Are they using write blockers on the drives as a matter of practice?

    Seems like using what amounts to using a trained chimp to do things like this would be more of a liability to Best Buy than anything else.

    Supposed a "tech" found something - unless the tech can outline how the drive was safeguarded from being written to, I find it completely plausible to say that the technician put it there. After all, given that there's a reward system in place, and these guys probably make shit as it is, this seems like a completely reasonable thing to argue.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2017 @ 8:31am

      Re: But wait...

      Exactly. The chain of custody is broken when you have paid informants individually searching computers with seemingly no supervision.

      reply to this | link to this | view in chronology ]

    • icon
      DB (profile), 12 Jan 2017 @ 11:10am

      Re: But wait...

      Certainly they were not using write blockers. The whole point of the 'service' is to fix problems and remove malicious software.

      The very nature of the business meant that the customer had no way to prove what was on the disk before turning it over. For instance, in this case the customer's machine wouldn't boot. The technician was tasked with modifying the disk contents so that it would boot.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 10:01am

    Confusing contradiction

    If the government claims that producing these documents will undermine the defendant's theories, why is the government not rushing to get these documents filed and published as quickly as possible? The prosecutor's goal is to secure a conviction, and if they have documents that would undermine the defendant's best chance at an acquittal, they should be thrilled to be invited to undermine him. Instead, they're claiming like they need to withhold the documents because disclosing it would improve the State's chance of a guilty verdict, which is exactly the verdict the State wants to get.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 Jan 2017 @ 1:20pm

      Re: Confusing contradiction

      Exactly. If the documents demonstrated what the FBI was saying they do they would be tripping over themselves to present them, as they would demolish the claims being made by the defense. The fact that they are instead doing everything they can to prevent the documents from being examined makes it pretty clear that the defense is likely dead-on, and the FBI doesn't want their claims confirmed in court.

      I expect that if push comes to shove the FBI will once again drop the case if the alternative is to present the evidence of the 'collaboration' program. As much as they prize convictions(not justice mind) they value their secrecy much, much more, as numerous cases have made abundantly clear.

      reply to this | link to this | view in chronology ]

  • icon
    imcurious (profile), 12 Jan 2017 @ 1:23pm

    I read that the tech found the document by retrieving files the guy had already deleted. I don't know anything about repairing dead computers so I wonder why a tech would need to retrieve something the person had already trashed and deleted to make the computer turn on again.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2017 @ 1:47pm

    CIA's use of fake vaccination campaign delayed polio eradication by a generation

    The government's use of fake employees puts everyone at risk:

    https://www.scientificamerican.com/article/how-cia-fake-vaccination-campaign-endangers-us-all/

    ' The distrust sowed by the sham campaign in Pakistan could conceivably postpone polio eradication for 20 years, leading to 100,000 more cases that might otherwise not have occurred, says Leslie F. Roberts of Columbia University's Mailman School of Public Health. “Forevermore, people would say this disease, this crippled child is because the U.S. was so crazy to get Osama bin Laden,” he argues.'

    reply to this | link to this | view in chronology ]

  • identicon
    RDA, 12 Jan 2017 @ 4:17pm

    When my employer switched to using Outlook for email, I had my settings so that I could look at the content of an email without actually opening it - I think it was a swipe of the mouse which made this happen.

    Some perverted joker sent me an email that was probably a link to some malware or porn site. As I slid my cursor across the email, guess what I saw? A close-up detailed photo of a man and his horse. There really are some things which can truly never be unseen. Of course, I deleted the email without ever clicking on any of the links, and I immediately changed my Outlook settings so that images would no longer automatically be seen.

    Even in those days, I was pretty advanced as far as all of this Internet crap, and I immediately located and deleted the temporary caches and anything else that I could think of, because I didn't want to wake up one day and have the FBI kicking down my door with a search warrant in hand, when I had done nothing wrong. If somebody wants to turn their horse into a girlfriend, it's none of my damned business and I really don't care, but I certainly don't want to personally be associated with online images of such odd things.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 13 Jan 2017 @ 11:03pm

    Best Buy Surveillance Agency

    If a private entity is doing something at the direction of government then that entity is an agent of the government; whether paid or not.

    I don't like how the article and discussion focus on payment. A monetary exchange may make it easier to prove agency but does not, of itself, create agency.

    Also, when the Best Buy Surveillance Agency violates a citizen's rights, it is not legally responsible: the solicitor of that agency relationship (the FBI) is the guilty party.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jan 2017 @ 4:37am

    What kind of imbecile at fbi thought this will fly, and nobody will learn about it in open court?

    reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 14 Jan 2017 @ 5:48am

      Re:

      Suppose, for discussion, that the defense is short of time, money, or brains: in which case the agent-of-government may not even have come up.

      So from the prosecution perspective: better not to mention it and hope it never comes up. This is how citizen rights are "innocently" violated wholesale, and it happens all the time.

      Worse, it only came up because the Best Buy agent was paid. Suppose a different scenario: the Best Buy agent was cooperating to avoid prosecution for something they did. Well, that makes it all better, doesn't it, to have them directed by the FBI and no money changing hands--and also much harder for the defense to prove.

      The problem is, first, the direction of a confidential agent by the FBI (whether paid, quid pro quo, or volunteer) and, second, the FBI's (repeatedly demonstrated) willingness to conceal the fact that the agent was under FBI direction.

      The bottom line was that the FBI hoped it would remain unnoticed that such a relationship existed. As they see it, just bad luck that this time it got found out. Better luck next case.

      reply to this | link to this | view in chronology ]


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