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.