Computer technicians are required by law to alert the authorities if they find evidence of child pornography on a customer’s computer.
This is exactly what happened in 2011 when Dr. Mark Rettenmaier sent his computer to Best Buy’s recovery headquarters in Brooks, Kentucky. A technician flagged the hard drive when he discovered a pornographic image of a prepubescent girl and Dr. Rettenmaier was slapped with federal charges.
This resulting case revealed that eight Best Buy employees (AKA “confidential human sources”) had been paid for providing the FBI with information they found on customers’ computers.
The fact that child pornography is involved tips the scales somewhat, but the bottom line is that the FBI should not be paying Best Buy employees for information they are already required by law to divulge.
When you add money into the equation, employees are more likely to search customers’ computers (in ways unnecessary to accomplish the services requested) in hopes of earning extra cash.
The pornographic image on Rettenmaier’s computer was found in unallocated “trash” space – a hard to access area containing deleted items.
Technicians do not typically access this space as part of a regular search, and defense attorney James D. Riddet argues that the technician was digging around in hopes of finding material the FBI might want.
“There is no evidence of how the contraband got onto Dr. Rettenmaier’s hard drive,” said Riddet. “And it could have gotten there before he possessed the computer or against his will.”
A federal appellate court ruled in Feb. 2011 that images found in unallocated space do not constitute “knowing possession” because it is impossible to determine when, why, or by whom those materials were downloaded.
Even so, the FBI decided not to mention the unallocated space detail when it submitted a warrant application to search Dr. Rettenmaier’s home and personal devices in 2012.
It’s hard to tell from this story whether this is an isolated incident, but the implications here are serious. When a customer hands his or her computer to a Best Buy technician, he is giving legal permission for that technician to fix the computer. He is not giving the government permission to search his computer.
If Best Buy becomes a sort of extension of the FBI, searching a customer’s computer should require a warrant.
“If they’re going to set up that network between Best Buy supervisors and FBI agents, you run the risk that Best Buy is a branch of the FBI,” argues Riddet.
Tech Dirt’s Tim Cushing slams the FBI for its “disturbing aversion to the Fourth Amendment” and claims its intent is to “make sure the accused faces an even more uphill battle once they arrive in court.”
“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,” continues Cushing. “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.”
Best Buy claims to have no relationship with the FBI. “From time to time, our repair agents discover material that may be child pornography and we have a legal and moral obligation to turn that material over to law enforcement,” said Best Buy spokesman Jeff Shelman, adding that customers are made aware of this policy before they begin repairs.
“Any circumstances in which an employee received payment from the FBI is the result of extremely poor individual judgment,” he continued.
The FBI has also denied accusations of a “cozy relationship” with Best Buy, but emails between agents and Geek Squad technicians suggest otherwise.
A federal judge in the Rettenmaier case plans to allow defense attorneys to probe the relationship between the FBI and Best Buy at a hearing that will begin this Wednesday (Jan. 11th).
Editor’s note: While we certainly have no sympathy for child pornographers, this really is a corrupting influence that where constitutional rights are being violated.
What if the FBI were looking for evidences of some other crime, like a theft, or perhaps (let’s channel Orwell’s 1984) even checking political reliability. Can the FBI just slip a guy a tech a few bucks without a court order and say go get it?
And of course, who else will pay the tech’s at Best Buy to get stuff from our computers? Maybe our data is being sold to the highest bidder?
Might be time to stop using Best Buy.