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Electronic Frontier Foundation Privacy Security The Courts Hardware Technology

EFF Sues FBI For Records About Paid Best Buy Geek Squad Informants (eff.org) 147

The Electronic Frontier Foundation is suing the FBI for records "about the extent to which it directs and trains Best Buy employees to conduct warrantless searches of people's devices." The lawsuit stems around an incident in 2011 where a gynecology doctor took his computer for repairs at Best Buy's Geek Squad. The repair technician was a paid FBI informant that found child pornography on the doctor's computer, ultimately resulting in the doctor being charged with possessing child pornography. From the EFF's report: A federal prosecution of a doctor in California revealed that the FBI has been working for several years to cultivate informants in Best Buy's national repair facility in Brooks, Kentucky, including reportedly paying eight Geek Squad employees as informants. According to court records in the prosecution of the doctor, Mark Rettenmaier, the scheme would work as follows: Customers with computer problems would take their devices to the Geek Squad for repair. Once Geek Squad employees had the devices, they would surreptitiously search the unallocated storage space on the devices for evidence of suspected child porn images and then report any hits to the FBI for criminal prosecution. Court records show that some Geek Squad employees received $500 or $1,000 payments from the FBI. At no point did the FBI get warrants based on probable cause before Geek Squad informants conducted these searches. Nor are these cases the result of Best Buy employees happening across potential illegal content on a device and alerting authorities. Rather, the FBI was apparently directing Geek Squad workers to conduct fishing expeditions on people's devices to find evidence of criminal activity. Prosecutors would later argue, as they did in Rettenmaier's case, that because private Geek Squad personnel conducted the searches, there was no Fourth Amendment violation. The judge in Rettenmaier's case appeared to agree with prosecutors, ruling earlier this month that because the doctor consented both orally and in writing to the Geek Squad's search of his device, their search did not amount to a Fourth Amendment violation. The court, however, threw out other evidence against Rettenmaier after ruling that FBI agents misstated key facts in the application for a warrant to search his home and smartphone. We disagree with the court's ruling that Rettenmaier consented to a de-facto government search of his devices when he sought Best Buy's help to repair his computer. But the court's ruling demonstrates that law enforcement agents are potentially exploiting legal ambiguity about when private searches become government action that appears intentionally designed to try to avoid the Fourth Amendment.
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EFF Sues FBI For Records About Paid Best Buy Geek Squad Informants

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  • by Craig Cruden ( 3592465 ) on Wednesday May 31, 2017 @09:25PM (#54522725)
    Since this was an active program by the FBI to recruit and pay on piecework basis for material found that was illegal, the Best Buy workers were no longer working for Best Buy with regards to this action and were effectively working for the FBI in a sort of deputized role. As such the terms of conditions by Best Buy should not apply, and since they are effectively contract workers for the FBI -- they should have required warrants. Thus the evidence should be thrown out.
    • by AHuxley ( 892839 )
      Make me think back to
      "FBI asks computer shops to help fight cybercrime" (February 5, 2004)
      "... given a list of local businesses ... with the idea of establishing a working relationship with all of them."
      http://the.honoluluadvertiser.... [honoluluadvertiser.com]
    • Okay, I'm sort of playing devil's advocate here, but why should they need a warrant even if they were effectively working for the FBI? The customer voluntarily brought his computer to Best Buy and the computer was in their custody at the time of the search. There was no entry into the customer's home: Best Buy was in possession of the computer at the time of the search.
      • by CaptainDork ( 3678879 ) on Wednesday May 31, 2017 @10:03PM (#54522857)

        Once Geek Squad employees had the devices, they would surreptitiously search the unallocated storage space ...

        So you take your car in for a regular tune-up and the techs search the trunk?

      • by Anonymous Coward

        Because they voluntarily brought the computer to Best Buy, not to the FBI. They did not give permission for the FBI to have access.

      • by Anonymous Coward

        Okay, I'm sort of playing devil's advocate here, but why should they need a warrant even if they were effectively working for the FBI? The customer voluntarily brought his computer to Best Buy and the computer was in their custody at the time of the search. There was no entry into the customer's home: Best Buy was in possession of the computer at the time of the search.

        Seriously? The customer does not know that he's turning over his PC to agents of the Federal government. My car is frequently "in the custody" of the hotel parking attendants but I don't expect them to open the glove box & trunk without my express permission

      • by Kjella ( 173770 ) on Wednesday May 31, 2017 @11:00PM (#54523079) Homepage

        Okay, I'm sort of playing devil's advocate here, but why should they need a warrant even if they were effectively working for the FBI? The customer voluntarily brought his computer to Best Buy and the computer was in their custody at the time of the search. There was no entry into the customer's home: Best Buy was in possession of the computer at the time of the search.

        Because otherwise a sysadmin at AT&T could wiretap any calls the FBI asks them to without violating the 4th amendment? Just because you have legitimate access to something in your job doesn't mean it's free for the police to grab.

      • by Anonymous Coward

        Think that a bit more. When at any time, any place, anywhere a customer of any kind leaves anything in the custody of the employees, the anything is free for any kind of inspection.

        When a customer goes to a restroom, can employees search through his belongings meanwhile?
        When a customer is put to sleep for surgery, can employees search through his belongings meanwhile?
        When a customer leaves his kid to a kindergarten, can the employees do a body cavity search to the kid?
        When a customer leaves his housekeys in

      • by dwillden ( 521345 ) on Thursday June 01, 2017 @05:51AM (#54524109) Homepage
        Because the Customer granted Best Buy permission to access the files and data needed to repair the computer. Not the FBI. By instituting a regular reward system, the FBI makes the Geek Squad Techs agents of the government. And thus a warrant is required to look at anything not absolutely required for effecting the needed repair. Unless specifically tasked to recover lost/deleted files, Scanning unallocated disk space for image files definitely exceeds that scope of access needed to effect repairs.

        The government is not allowed to simply have someone else do the dirty work to get around the protections afforded a citizen under the Constitution and the Bill of Rights. If someone else finds something and takes it to the Government of their own free will, it is admissible. If the government approaches someone and says hey look for this on every hard drive you service and we'll pay you when you find some, that is inadmissible, or should be as that person is acting as an agent of the government.
    • Since this was an active program by the FBI to recruit and pay on piecework basis for material found that was illegal, the Best Buy workers were no longer working for Best Buy with regards to this action and were effectively working for the FBI in a sort of deputized role. As such the terms of conditions by Best Buy should not apply, and since they are effectively contract workers for the FBI -- they should have required warrants. Thus the evidence should be thrown out.

      Yeah, I'm kinda shocked the judge (seemingly) allowed this though I can see the reasoning they probably used.

      Basically the Best Buy employees would be acting as deputies if they were doing something they wouldn't normally do in the course of their job. For instance, if you were paying for them to repair your computer at your house, and they used the opportunity to snoop through your drawers and report that to the FBI. Then that would be a 4th amendment violation.

      But poking around a hard drive is a legitimat

      • But poking around a hard drive is a legitimate part of fixing a computer, and if they inform on criminal activity they've observed as part of their normal activities they're informants.

        Unless the customer is asking for recovery of deleted files, please explain the reason for looking for files in unallocated space while performing maintenance.

        • by quantaman ( 517394 ) on Wednesday May 31, 2017 @10:34PM (#54523001)

          But poking around a hard drive is a legitimate part of fixing a computer, and if they inform on criminal activity they've observed as part of their normal activities they're informants.

          Unless the customer is asking for recovery of deleted files, please explain the reason for looking for files in unallocated space while performing maintenance.

          FTA:

          The case began in November 2011 when Rettenmaier, a gynecologic oncologist, took his desktop computer to a Best Buy in Mission Viejo, Calif., because it wouldn’t boot up. The technicians there were able to fix that problem, but not recover Rettenmaier’s data. Court records show that Best Buy sends all of its data recovery jobs to Geek Squad City in Brooks, Ky., outside of Louisville.

          The records also show that Rettenmaier signed a form when he first handed over the computer, stating that any child pornography found by Geek Squad technicians will be reported to the authorities. When a technician called Rettenmaier to ask him if he wanted his data restored, including pictures, Rettenmaier said yes on a recorded call. In general, searches performed by private entities do not require a search warrant — only government searches do.

          I'm not saying I agree the technician was acting as an informant, but there's legitimate ambiguities at work.

          • by Anonymous Coward

            ..wait a minute.
            He had them deleted?

            so how was he in possession. it's not like you can just send someone files and they go to jail is it? (actually, in usa it seems it is - kinda surprised this isn't used more for a kind of swatting..).

          • The records also show that Rettenmaier signed a form when he first handed over the computer, stating that any child pornography found by Geek Squad technicians will be reported to the authorities. When a technician called Rettenmaier to ask him if he wanted his data restored, including pictures, Rettenmaier said yes on a recorded call.

            There is something that doesn't quite make sense. Presumably if the Doctor knew he had kiddie porn on his computer, there is a bit of a disconnect that he would sign that form. As well, unless he was insane, why would he consent to BB recovering any data? He would know he had illegal shit on the computer, but said in effect. "Yeah, I know you're going to find that stuff and report it to the feds, but YOLO, LOL!" Something doesn't add up here.

            • The records also show that Rettenmaier signed a form when he first handed over the computer, stating that any child pornography found by Geek Squad technicians will be reported to the authorities. When a technician called Rettenmaier to ask him if he wanted his data restored, including pictures, Rettenmaier said yes on a recorded call.

              There is something that doesn't quite make sense. Presumably if the Doctor knew he had kiddie porn on his computer, there is a bit of a disconnect that he would sign that form. As well, unless he was insane, why would he consent to BB recovering any data? He would know he had illegal shit on the computer, but said in effect. "Yeah, I know you're going to find that stuff and report it to the feds, but YOLO, LOL!" Something doesn't add up here.

              I can think of 4 possibilities.

              a) He didn't realize the technician would actually view the recovered photos.
              b) He had deleted the photos, and didn't realize recovering data might include files he'd deleted on purpose.
              c) Who reads those forms? He probably thought the technician would treat any photos he found as confidential.
              d) People doing stupid things that don't make sense is a very regular occurrence.

              • I can think of 4 possibilities.

                a) He didn't realize the technician would actually view the recovered photos.
                b) He had deleted the photos, and didn't realize recovering data might include files he'd deleted on purpose.
                c) Who reads those forms? He probably thought the technician would treat any photos he found as confidential.
                d) People doing stupid things that don't make sense is a very regular occurrence.

                e) He had a refurbished drive in his computer and the previous owner was responsible for them being there.
                f) Best Buy employees get paid a bounty for finding these and placed them on there.
                g) Best Buy employees don't get paid a bounty, but put them there because they thought he was rude to them.
                h) Best Buy employee put the images on the drive because they were having a bad day.
                i) The owners computer got rooted and some one put those images on the hard drive, but the owner was appalled and deleted them prior

      • by v1 ( 525388 ) on Thursday June 01, 2017 @07:18AM (#54524321) Homepage Journal

        But poking around a hard drive is a legitimate part of fixing a computer, and if they inform on criminal activity they've observed as part of their normal activities they're informants.

        Not even remotely. I repaired computers for a decade, and never once did I have reason to "poke around on a hard drive". Even on the rare occasion I needed to open a document without the customer's involvement (to test speakers or a video issue for example) I knew where in the OS to find pictures or sound files I could use. I never needed to even rifle through their Pictures folder to find something to open.

        And lets not forget, they were searching the unallocated space on the hard drive. There is absolutely no reason to do this unless you are searching for deleted data. So unless they brought it in for an unformat or to recover something accidentally deleted, you have ZERO business doing that kind of search.

        I see this as no different than contracting a painter to come over and paint a few rooms of your house, and when you step out into the garage to work on your car they start rifling through your dresser looking for anything illegal. Maybe the local DEA has a private deal with that employee and wants to know if he ever "stumbles across" any drugs. And they'll pay him for the tip. And maybe he carries a little baggie in his truck to leave in your underwear drawer if you look like a good mark.

        And lets not forget, he's being offered a reward. If that doesn't reek of "incentive to plant evidence", I don't know what does. There's a reason we don't pay cops bonuses when they make busts. You don't give incentives to law enforcement to find more illegal activity because it encourages them to plant evidence and violate rights. Using a proxy doesn't improve this. If anything, it makes it worse because now you're not trying to rely on the morality and legal knowledge of an officer... now you're relying on the morals and legal know-how of Joe Citizen, and that's a heck of a lot worse still.

        I see three things that need to be addressed here. First off, employees conducting searches that clearly go beyond the business contract. I think anyone who's been surreptitiously searched by a service provider should have grounds for legal action, whether or not they found anything naughty. If I come back in from the garage and see the painter sifting through my dresser he's going to get thrown out of my house as a starter. Then I'm going to be on the phone lighting up the ear of his manager. And depending on how that goes, I may meet him in court a little later. The problem with computer forensics is it's a heck of a lot harder to catch them doing this. They're doing it out of your sight, and leaving essentially no evidence. IMHO that should make civil penalties worse. Penalties for behavior that's harder to catch needs to be more severe to balance out the incentive that it's easier to get away with, to make the risk-calculations in the criminal's head balance out.

        Second, Best Buy should have at least some legal exposure here also, because it should be part of their employee's training that you don't violate the privacy rights of a customer. We didn't have a written policy where I worked, but it was occasionally discussed with the new people that you don't go mucking around on customer hard drives. If several of your employees are taking advantage of their access to customer data for personal gain, this should be a huge issue for Best Buy. Not only is it a legal issue, but it's a huge violation of customer trust and will have an impact on business as customers take their gear elsewhere for service. So it's in the business's best interest for several reasons to prevent this behavior. (that, and how much clock time was wasted by these employees while they conducted hard drive scans, getting paid by the hour from BB to scan hard drives that the FBI would then maybe pay them for? That's theft, as I doubt they d

        • And lets not forget, they were searching the unallocated space on the hard drive. There is absolutely no reason to do this unless you are searching for deleted data.

          I did mention in a follow-up comment that in this case there was a phone call from Best Buy aslomg whether they should try to recover data, and the customer responded yes.

  • what standing does the EFF have to sue the FBI? (Third parties can't sue wrong-doers; only the allegedly-wronged party can sue.)

    • It sounds like from the summary that the EFF is not suing for DAMAGES, but instead, suing for information, which will be beneficial to all.
    • by Anonymous Coward

      They aren't suing over the program, they are suing over the information since they filed a FOIA request and the FBI denied it.

      That is the official act they wish to overturn.

      Any complaint over the actions taken will come after they get information.

    • Look up "The Freedom of Information Act."

  • by bongk ( 251028 ) on Wednesday May 31, 2017 @09:33PM (#54522757)

    Some of the articles seem to indicate employees are stumbling across illegal images as part of their repair process. But they are retrieving images from slack space, which afaik is not something a best buy type repair tech would do as part of a repair. So the techs are at a minimum using forensic tools to recover data. Also where are they billing the time for these non repair activities?...forensic scans are time consuming.

    I'm also very curious to know if the techs were then manually reviewing the recovered images, again time consuming, or if the FBI further assisted by providing the tech access to LE tools such as the databases of hashes of known CP to make their searching faster.

    As a victim of CP myself I have no love for creeps who access or share it, but for the FBI to argue that best buy employees weren't being led to perform searches on their behalf sounds rediculous.

    • by mentil ( 1748130 )

      I find it very suspicious that the techs are specifically scanning unallocated space. It's as if they're looking for files deleted before the computer broke, as in, images that weren't intended to be downloaded. Are they specifically trying to catch people that weren't intending to break the law, taking advantage of strict liability? If so, this is Exhibit B for why Mens Rea should be an allowable defense for every law. Planted drugs would be Exhibit A.

    • Some of the articles seem to indicate employees are stumbling across illegal images as part of their repair process. But they are retrieving images from slack space, which afaik is not something a best buy type repair tech would do as part of a repair. So the techs are at a minimum using forensic tools to recover data.

      Exactly. Not something that is likely to be found in the standard bucket o' e-tools for a Geek Squad tech. I'd be shocked if 10% of them even know what a forensic scan was.

      Also where are they billing the time for these non repair activities?...forensic scans are time consuming.

      Chances are they were not billing anyone. Given the amount of time scans take, techs were probably initiating them at the end of a work day, and letting them run overnight, while everyone was technically off the clock.

  • unless the post leaves it out.
    • Any citizen has the right to sue the government to demand release of any information that is not confidential for the sake of national security. The EFF just also has the knowledge and resources to catch them hiding something illegally and succeed in forcing their hands.

  • where the prior owner just deleted some files..... and sold it to you... and months later you taking said computer for repairs
    • where the prior owner just deleted some files..... and sold it to you... and months later you taking said computer for repairs

      Then the police would want full details of the purchase and they'd investigate the person who sold the computer to you. It's no good just to say to the police, "What if I had purchased this computer on Craigslist? I'm not saying I did, but I could have."

    • sudo badblocks -b 512 -p 8 -s -w /dev/sda

    • what about when dell / hp / others use refurbish parts under warranty

  • So it's true, Doctors really suck at computers, don't they?

  • I'm not for the FBI releasing names of Geek Squad Goons, but I want as much information on the program as can be released be done so. Not because I want to out the FBI, but because I want to out the Geek Squad for being the twerps and nongeeks they truly are.
  • by mentil ( 1748130 ) on Wednesday May 31, 2017 @10:34PM (#54523003)

    FBI: "We're not doing an end-run around the Constitution. We're paying civilians to do an end-run around the Constitution FOR us! There's a difference!"
    Courts need to come down on this hard or else it'll become standard practice.

  • It would have been the easiest thing in the world to pick up $1,000 by planting child porn on someone's computer by members of the geek squad.

    If more than a half dozen geek squad members were working for the FBI, I'd be shocked that at least one didn't turn out to be planting evidence.

    Which should turn up with forensic accounting. (Hmmm. 39 geek squad find 0 to 2 child porn instances but this girl found 7 instances).
    .

  • by Joe_Dragon ( 2206452 ) on Wednesday May 31, 2017 @11:30PM (#54523155)

    what abort chain of custody / forensics issues? The defense has the right to know and they have the right to do there own forensics work with there own lab.

    Under reasonable doubt I can say

    Who knows if that porn came form other infected systems on the Geek Squad network (I head that they outscored some of the clean up of systems to remote places)

    What if an Geek Squad worker has an infected usb disk that just copy's stuff system to system? some workers have copied stuff from people systems for there own use.

    what if was just in the browser cache??
    http://www.popsci.com/technolo... [popsci.com]
    http://gizmodo.com/5099383/pop... [gizmodo.com]

    • Under reasonable doubt I can say...

      You clearly don't understand what "reasonable doubt" means. It doesn't mean that all you have to do is throw out another possible explanation and you're home free, it means that the jury has to find your alternate explanation to be reasonable and plausible to the extent that they can't really be sure if the defendant is guilty or not. Just saying that the CP came from some other infected computer in the repair facility isn't enough; you either have to show that there
      • well you need to use discovery to get the info on there network / precautions. And if the try there geek squad top secret line to say why we can't give that out then it makes the case that much more iffy.

        • If the geek squad tries to claim that they can't testify about corporate procedure under oath, they're in a world of trouble. This isn't national security here, and unless they can prove that what they did is a trade secret, they can end up in jail for contempt.
  • by moeinvt ( 851793 ) on Thursday June 01, 2017 @07:31AM (#54524373)

    I think it's a travesty that the government is allowed to violate the Fourth Amendment by using a 3rd party as a proxy. Unfortunately, there is legal precedent for this type of abuse. In Smith v Maryland [wikipedia.org] the SCOTUS ruled that the individual has no expectation of privacy for data turned over to a 3rd party. Government asked the phone company to install a device to trace Smith's calls without seeking a warrant. The criminal court, appeals court & SCOTUS all ruled that this was legal & the evidence was therefore admissible. There was another terrible decision where the court ruled that government can get your bank records without a warrant, claiming that the records are the property of the bank & not your private papers.

    This case seems to contain a new wrinkle because the FBI was paying people to go on fishing expeditions rather than targeting a specific person. I hope the courts will conclude this was an illegal search, but I think that's unlikely.

    One of the great flaws in The U.S. Constitution is that government is allowed to be the arbiter of its own power.

    • It's not so much that they are "paying people to go on fishing expeditions", as that they are buying the fish when the boat gets back to shore. This probably reduces the agency in the relationship.

  • Can anyone speak as to what legal requirements to report (if any) comes into play when an authorized third-party discovers child pornography during the course of a permitted check of computer equipment? Are there jurisdictions where the the Geek-squad employee could be charged for failing to report?
  • To sum up: If a Best Buy employee stumbles across something illegal, and alerts the authorities, it's not a 4th Amendment violation (which requires a warrant signed by a judge.)

    If they are asking him to search, then he becomes an agent of government, and a warrant is required, and the search is invalid.

    If they fucking pay him, jfc, he's totally a government agent.

    • Devil's advocate:

      If you report a bug to Google and get a bounty, that doesn't make you a Google employee.
      If you find and report child pornography to the Feds and collect a reward, it doesn't make you a cop ("agent of the government").

  • So if someone offered cash rewards for killing someone, that's okay right? It sounds like the same logic to me. Getting someone else to do your dirty work puts you in the clear? No it does not.
  • If I was into that shit - I wouldn't leave it on the disk and take it to a place that employs high school grads (or not) to fix my PC.

    I manage client systems front ends - and one time I was like "why isn't this system patching" and upon investigation I found that the disk was totally full. So I was like - hmm I wonder why it's totally full. It had tons of XXX rated videos on it.

    In the course of troubleshooting you are going to find that stuff.

    It would be like if you were a mechanic and popped out a door pan

  • In other news, the FBI is paying cable installers for tips on people keeping illegal items in their homes.

    Side note: Cable installers are making $1,000 for each $20 bag of weed they hide in people's homes.

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