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.

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Filed Under: 4th amendment, fbi, foia, geek squad, informants, private searches
Companies: best buy, eff


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  1. icon
    Ninja (profile), 2 Jun 2017 @ 11:48am

    And they ask with a straight face why one would need to be a whistleblower these days given there are "official" channels for complaint. Channels you have either to beg pretty please with thousands of dollars in your hands, force it through with lengthy and costly lawsuits or just receive a middle finger in the and and be stuck with nothing. I hope thousands of Ed Snowdens rain on them like a Biblical plague.

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

  2. icon
    DeComposer (profile), 2 Jun 2017 @ 12:58pm

    Planting Evidence

    This seems like an open invitation for Geek Squad members to plant illegal content on the devices of someone who pissed them off, only to "discover" it, report it to the FBI, and collect the reward.

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

  3. identicon
    Anonymous Coward, 2 Jun 2017 @ 1:12pm

    look on the bright side...

    at least people will start being nice to those poor verbally abused techs.

    It will start to get around to be nice or risk becoming a sex offender!

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

  4. identicon
    Annonymouse, 2 Jun 2017 @ 1:18pm

    Re: look on the bright side...

    I have had to deal with those alleged victims and I have little sympathy for the so-called experts thY deal directly with the public. The poor sobs who do the repairs in the back do deserve some pity but only some.

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

  5. icon
    John Snape (profile), 2 Jun 2017 @ 2:09pm

    An idea

    Why not, when a government agency refuses to respond to a legitimate FOIA request, just make it so the courts have to believe the very worst of the agency, and act accordingly?

    For example, if you won't divulge the information about Geek Squad members and payments from the FBI, courts will assume all cases related to Geek Squad discoveries are illegal searches and all of them are thrown out with prejudice.

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

  6. identicon
    Anonymous Coward, 2 Jun 2017 @ 3:35pm

    State Actors

    When a 3rd party is doing thing on behalf of, at the request of, or in return for payment, they are considered state actors. All restrictions that the government has on rights violations still applies to things that these state actors do on their behalf.

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

  7. identicon
    Anonymous Coward, 2 Jun 2017 @ 3:37pm

    Re: Planting Evidence

    Chain of custody is instantly considered broken when a paid informant had access to the computer and then gets rewarded for "finding" the illegal things.

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

  8. identicon
    Anonymous Coward, 2 Jun 2017 @ 3:38pm

    Re: An idea

    Better to hold their finances in escrow so no one gets paid in that agency until they are no longer a violating the law and our rights on a continual basis.

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

  9. identicon
    Anonymous Coward, 2 Jun 2017 @ 4:15pm

    Standung

    How often is EFF going to waste time and taxpayer money just to be told they have no standing?

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

  10. identicon
    Anonymous Coward, 2 Jun 2017 @ 4:23pm

    Re: Standung

    How often is the federal government going to waste taxpayer dollars defending its own unlawful actions?

    FTFY

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

  11. icon
    That One Guy (profile), 2 Jun 2017 @ 4:59pm

    Re: Re: Planting Evidence

    The chain of custody should be considered instantly broken in such cases, unfortunately there can be a rather large divide between 'should be' and 'is' at times.

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

  12. identicon
    Anonymous Coward, 2 Jun 2017 @ 6:12pm

    Re: Re: Standung

    Are the actions truly unlawful? Has SCOTUS ruled on this? Circuit court?

    You didn't fix anything. You just added slant. Why not address the issue of standing?

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

  13. identicon
    Anonymous Coward, 3 Jun 2017 @ 5:53am

    Re: State Actors

    Unfortunately a lot of people in law enforcement have god complexes and feel they are entitled to do whatever they want.

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

  14. identicon
    Anonymous Coward, 3 Jun 2017 @ 5:58am

    Re: Re: Re: Standung

    > You didn't fix anything.

    What a load. One doesn't have to "fix" a situation in order to comment on it.

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

  15. identicon
    Anonymous Coward, 3 Jun 2017 @ 7:28am

    Re: Re: Re: Standung

    The only way to find out if they had standing would be to sue them.... oh dear.

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

  16. identicon
    Rekrul, 3 Jun 2017 @ 1:32pm

    Taken to its logical conclusion, the DEA could offer a reward to employees of a cleaning service for finding drugs in a customer's home. The ATF could offer rewards for finding illegal guns.

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

  17. identicon
    Anonymous Coward, 3 Jun 2017 @ 4:53pm

    Re: Re: Re: Re: Standung

    Not really.

    EFF has had cases kicked out before in similar circumstances because they were unable to produce a single person who was impacted by government action. This case seems to be about the same with EFF not really representing anyone except themselves but they don't show that they have been affected.

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

  18. identicon
    William, 3 Jun 2017 @ 7:16pm

    Wonder if EFF exceeded fair use by headlining their article with a huge, modified counterfeit "Geek Squad" logo altered to say "Gov't Squad"?

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

  19. identicon
    Anonymous Coward, 3 Jun 2017 @ 11:11pm

    Just another isolated incident.

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

  20. identicon
    Anonymous Coward, 4 Jun 2017 @ 2:28am

    Re: Re: Re: Re: Re: Standung

    Ah, the old "if you didn't know you were illegally put under surveillance it's not illegal" argument.

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

  21. identicon
    My_Name_Here, 4 Jun 2017 @ 5:15am

    Fishing For Facts

    EFF is doing what they usually do in these cases, which is defend nobody in particular against something that isn't totally known or understood, hoping somehow that they can force the government to disclose information they have no reason to disclose (like who works as an informant).

    I am starting to think that EFF is working for the headline "EFF sues government" and not really worrying about the end result as much. It's all about getting your attention.

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

  22. identicon
    Anonymous Coward, 4 Jun 2017 @ 10:31am

    Re: Re: Re: Re: Re: Re: Standung

    Yeah, also the old "the only crime is in getting caught" argument.

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

  23. identicon
    Anonymous Coward, 4 Jun 2017 @ 10:34am

    Re:

    Taken to its logical conclusion, the DEA could offer a reward to employees of a cleaning service for finding drugs in a customer's home. The ATF could offer rewards for finding illegal guns.

    Or auto mechanics for finding contraband in cars.

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

  24. identicon
    Anonymous Coward, 4 Jun 2017 @ 4:51pm

    Re: Re: Re: Re: Re: Re: Standung

    The argument is only that to seek injunctive relief you have to show what you are seeking relief from. EFF had a hard time to show cause.

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

  25. identicon
    Thad, 5 Jun 2017 @ 11:57am

    Re: Fishing For Facts

    It's all about getting your attention.

    So how's that sense of irony working out for you, My_Name_Here?

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

  26. icon
    TRX (profile), 6 Jun 2017 @ 3:46pm

    > parallel construction

    Or as it's known when someone else does it, "perjury."

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

  27. icon
    Bergman (profile), 6 Jun 2017 @ 6:38pm

    Re: Re: Re: Planting Evidence

    It doesn't help that a lot of defense lawyers, being unaware of the paid informant nature of the searches, fail to argue that point in court.

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

  28. icon
    Bergman (profile), 6 Jun 2017 @ 6:39pm

    Re: An idea

    I bet the FBI wouldn't accept a Glomar or a claim that there are no documents responsive to a subpoena they issued. And yet, it's also illegal to ignore FOIA.

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


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