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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Goddamn children. I don't like Trump but you fuckers are running around like little faggots saying that shit. Grow the fuck up.
The judge should have thrown out evidence... (Score:5, Insightful)
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"FBI asks computer shops to help fight cybercrime" (February 5, 2004)
"... given a list of local businesses
http://the.honoluluadvertiser.... [honoluluadvertiser.com]
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Re:The judge should have thrown out evidence... (Score:5, Insightful)
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?
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AC said > depends, what if you said there was a problem with the trunk latch and you wanted him to look at it?
Uh.. okay...
you take your car in for a tuneup and they x-ray the car for hidden compartments- which they search if they find any.
All of which is more akin to what geek squad members were doing.
(and for grins they also search the contents of the console, glove box, your trunk, the closed box in your trunk, pull out the seats and search the space behind the seats).
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No, it would be like you having your car towed to a repair shop to be fixed.
They couldn't fix it without replacing the.... ok so a car analogy doesn't work here.
BestBuy called the guy up to ask him if they should try and recover his lost data, because they had to format and reinstall the OS.
He said yes. That call was recorded.
He had already also signed a consent form that said any child pornography found would be turned over to the FBI.
Please try and turn it into a car analogy though.
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The FBI pays car mechanics to look for a combination of moslem writings and anything that could be used to make IEDs in cars brought in for repair. The repair shop's customers consent to the mechanics going over their cars. The car mechanics have a very lucrative business stashing plant fertilisers and moslem texts in cars brought in my middle eastern-looking customers.
Re:The judge should have thrown out evidence... (Score:4, Insightful)
Worse, even if you knew the chain of custody from the manufacturer, and even if you could prove that the material wasn't planted by Best Buy employees, if the drive was refurbished (as is often the case for computers that have been repaired previously), you would also need to know the chain of custody for the platters in the drive, which almost certainly does not even exist.
Searching the unallocated space on a hard drive for kiddie porn is simply not a legitimate investigative technique, and anybody in law enforcement who works with cybercrime should know that already. So why the heck are we even having this discussion? This evidence must be suppressed as fruit of the poisonous tree, along with any evidence obtained as a direct result of any warranty wrongfully obtained based on that evidence, which likely means that the case will get dismissed for lack of evidence.
Not to mention that deleted kiddie porn files are not prima facie evidence of a crime, because it is only a crime if possession was willful and with the offender's knowledge (United States v. X-Citement Video, Inc.). If the offender had a reasonable belief that the performers were of legal age, or that the material was not pornographic, or if the offender did not intentionally obtain that material, then it isn't a crime. That's what makes prosecution really problematic.
Of course, it is quite possible that the Best Buy "finders" are actually parallel construction. For example, the owner of the computer might have knowingly downloaded one of those state-sponsored trojans that we've read about from a kiddie porn site, which in turn caused him to take the computer to Best Buy to remove the infection, and they detected that during the cleanup. If so, it's possible that they aren't allowed to talk about it in court because the trojan would then become part of the public record, which would create a whole new fruit-of-the-poisonous-tree discussion that makes this one look like child's play. But that's pure speculation.
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" So why the heck are we even having this discussion?"
I wish we were not having it. I agree with your reasoning, but the judge in this case sided with the prosecutors and ruled that the guy had given up his right to privacy via his verbal & written agreement with Best Buy.
A lot of the evidence in this case was suppressed for other reasons. On the specific question of the Geek Squad's search of the unallocated space on the hard drive, the judge ruled that it was a legal search and the information/image
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Not to mention that deleted kiddie porn files are not prima facie evidence of a crime, because it is only a crime if possession was willful and with the offender's knowledge (United States v. X-Citement Video, Inc.). If the offender had a reasonable belief that the performers were of legal age, or that the material was not pornographic, or if the offender did not intentionally obtain that material, then it isn't a crime. That's what makes prosecution really problematic.
I don't think any part of that is true. The SCOTUS reversed the 9th Circus on that case, upholding the original conviction. Some states explicitly don't require intent in their laws - a cop can literally stuff porn in your pocket, then arrest you for possession, and your fate would be in the hands of prosecutorial discretion. Even in sane states, if the search is ruled legal, then you're going to have to convince the jury you didn't know - the burden of proof will be on you, because this is a witch hunt.
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Go read the actual decision [justia.com] and then tell me I'm wrong.
This case was not about an innocent bystander, but rather a distributor trying to use a constitutional challenge to avoid conviction. The 9th circuit ruled that the law was unconstitutional by interpreting the statute in such a way that distributing child porn was illegal regardless of whether the person distributing the child porn
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The SCOTUS upheld the constitutionality of the law, but the reason it was upheld was not because the law allowed prosecution of a distributor who was not aware of the underage nature of the performers. Rather, the conviction was upheld because the 9th circuit had already ruled that the prosecutor had sufficiently proven that the distributor had knowledge of the underage nature of the performer (and, IIRC, actually knew the performer), and SCOTUS did not disagree with that assessment.
The reason for the SCO
Re:The judge should have thrown out evidence... (Score:4, Insightful)
depends, what if you said there was a problem with the trunk latch and you wanted him to look at it?
"Hi, my CD drive isn't working. Oh and while you're at it, can you take a look at my unallocated drive space?", said NO ONE EVER.
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depends, what if you said there was a problem with the trunk latch and you wanted him to look at it?
"Hi, my CD drive isn't working. Oh and while you're at it, can you take a look at my unallocated drive space?", said NO ONE EVER.
"Hi, I accidentally deleted a large number of files and can't log into my machine any more. Oh and while you're at it, can you try to both recover the files and make my system usable again?", said lots of customers.
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Because they voluntarily brought the computer to Best Buy, not to the FBI. They did not give permission for the FBI to have access.
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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
Re:The judge should have thrown out evidence... (Score:4, Insightful)
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.
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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
Re:The judge should have thrown out evidence... (Score:5, Insightful)
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.
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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
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Unless the customer is asking for recovery of deleted files, please explain the reason for looking for files in unallocated space while performing maintenance.
Re:The judge should have thrown out evidence... (Score:4, Informative)
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.
He wasn't in possession of them. (Score:1)
..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..).
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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.
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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.
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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
Re:The judge should have thrown out evidence... (Score:4, Insightful)
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
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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.
Yes, the FBI was bad. but... (Score:2)
what standing does the EFF have to sue the FBI? (Third parties can't sue wrong-doers; only the allegedly-wronged party can sue.)
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"Paying for someone else to sue" is NOT the same as filing your own suit.
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Re: Yes, the FBI was bad. but... (Score:1)
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.
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Look up "The Freedom of Information Act."
The discoveries are not accidental (Score:5, Insightful)
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.
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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.
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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.
EFF has no standing (Score:2)
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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.
Imagine Buying a used computer on say Craigslist (Score:1)
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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."
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sudo badblocks -b 512 -p 8 -s -w /dev/sda
what about when dell / hp / others refurbish parts (Score:2)
what about when dell / hp / others use refurbish parts under warranty
Wooooow...... (Score:1)
So it's true, Doctors really suck at computers, don't they?
I'm of a mixed mind. (Score:1)
End-Run Around the Constitution (Score:4, Insightful)
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.
FBI was inducing them to plant evidence (Score:2)
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).
.
what abort chain of custody / forensics issues? (Score:5, Insightful)
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]
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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
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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.
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Terrible SCOTUS decisions set the precedent (Score:4, Informative)
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.
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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.
Are they required to report? (Score:1)
He's an independent contractor! (Score:2)
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.
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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").
Based on the FBI's logic (Score:2)
I don't get people (Score:2)
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
The cable guy... (Score:2)
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.
Re:Oh Dear Lord! (Score:5, Interesting)
I think it's relevant to the customers that visit Best Buy, use their services, or have received hardware as a gift. If employees are doing warrant-less searches and being paid by the government to do it, this is foul play. Any information gathered under these false pretenses is inadmissable in court, according to law. If government won't respect its own laws, then it dilutes the value and even the threat that laws present to someone who might decide to start breaking law, and the state of order is weakened.
Without further details, we can't know whether the doctor is guilty or not. The hard drive could have been purchased refurbished, from a friend, found in the guts of an old computer at Goodwill... who knows? The important part is, if we're going to gather information, it should be through the proper channels. Bribing near-minimum-wage workers with a month's wages to violate the same laws that protect us all is closer to organized crime than any legitimate government. They know better, and the EFF is one of the few organizations that calls bullshit when they see it.
It's relevant to Slashdot because if it's happening with Best Buy, it could be happening with other companies and services, too. I should hope the average /.er would avoid BB, but there could be plenty of /.ers who've used the services and it could benefit the lives of people /.ers know, by urging their friends and family to reject Geek Squad service.
It's already had an effect: it got you to comment about it, didn't it? It's also creating some bad PR for Best Buy, and will call its name (and thus quality, trust, customer loyalty) into question as a technology retailer and service company. These injustices are important to expose and punish, to disincentivize criminal conduct, even when committed by a government that claims to protect its people.
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well not only warrantless but if the informant is paid by cases found, then.. well, you'll see where it goes.
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well not only warrantless but if the informant is paid by cases found, then.. well, you'll see where it goes.
There's already a lot of other precedent that if the person is acting on behalf of the government, then they are a de-facto government agent.
A really common scenario is when the police bust somebody, and in exchange for a much lighter sentence, he has to become a CI and catch some of his cohorts in the act and have them busted. But in many cases, these CI's don't actually know anybody who they can catch, so they talk somebody else into breaking the law in spite of all of that person's objections. That perso
Agent relationship (Score:1)
As someone who has read literally dozens of cases of guys convicted using the testimony of Confidential Informants, I disagree. In the federal system, at least, there is lots of precedent that CIs are NOT agents of the government, in spite of acting at their behest, being paid by them, and being strongly incentivized to produce convictions. There is a similar issue at play in the use of the federal conspiracy statute.
Incorrect assessment of the agency relationship is one of the biggest problems with the W
So many wrongs... (Score:2)
Indeed, there could be an incentive to plant false proof just for the seek of getting the money.
Then there are other problems:
- The files might not have been his. (2nd hand drive ? Not very likely on a doctor's salary, but still...)
- It's a *Medical doctor* bringing his machine for repairs.
There might be information falling under protection of medical data.
(e.g.: the doctor could have been in middle of work, when his computer crashed, and not have been able to sanitize it, before bringing it for repairs).
By
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Unless Geek Squad is qualified to handle PHI. But I would be surprised if they are.
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As far as using this in court, this probably looks like one of those really easy cases. Tons of precedent for third-party search and CI not proving agency. What will this judge say? Who knows, but from cases I've read before, this guy is probably going to prison.
Re:Oh Dear Lord! (Score:5, Insightful)
Without further details, we can't know whether the doctor is guilty or not. The hard drive could have been purchased refurbished, from a friend, found in the guts of an old computer at Goodwill... who knows? The important part is, if we're going to gather information, it should be through the proper channels. Bribing near-minimum-wage workers with a month's wages to violate the same laws that protect us all is closer to organized crime than any legitimate government. They know better, and the EFF is one of the few organizations that calls bullshit when they see it.
You forgot to mention another possibility -- when you pay someone a big bounty to find something, you're giving them incentive to put it there themselves.
https://en.wikipedia.org/wiki/... [wikipedia.org]
Before the Anatomy Act 1832, executed criminals were the only legal source of bodies for hospitals to use for surgeon training. Due to high demand from chronic shortage of legal cadavers, "resurrection men" resorted to illegal means to obtain bodies, such as digging up corpses from graveyards or even murder. In 1828, William Burke and William Hare murdered 16 people and sold the bodies. Thomas Williams and John Bishop, part of a group of body snatchers known as the London Burkers, committed murder for the purpose of selling the victim's body in 1831.
Re:Oh Dear Lord! (Score:4, Insightful)
That's a horrifying, if relevant and probable point.
People have a lot of incentive to lie or otherwise cheat their "task", especially if it means they can get out of a dead-end job, start saving a little, or buy that sick rig they've been eyeing. $1000 ain't shit to the government, but to nerds trying to make their way up at Geek Squad, that's a big deal. Best Buy's not gonna provide any real incentives to do a good job (at least, not at that level), so these employees probably thought, "Fuck, I'm helping the government AND they value my work! I should keep this up!"
As usual, pitting the poor against the rights of others. It makes me wonder where the employees are in all of this, and what their stories are. It's not like the government just saunters into your HQ one day and demands you do something highly illegal. It was probably an inside job coming from middle management (perhaps legal pressure for another crime, and their compliance is used as currency to avoid jail time), or pre-discussed with leadership behind a gag order.
Whatever the case, it wholly deserves the scrutiny and attention it's receiving.
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Re:Oh Dear Lord! (Score:5, Insightful)
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And that is any different than today... how? The third-party doctrine would seem to apply, not unlike how Google or Microsoft can peruse your email or uploaded files looking for things they don't like (or think illegal and report it).
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It's different because the FBI hasn't asked and paid MS employees to do it. MS is doing it of their own volition.
Re:Oh Dear Lord! (Score:4, Informative)
No. The third-party doctrine only covers information voluntarily given to a third party. The key word in the doctrine is "revelation". Giving a computer to a third party to repair does not constitute revealing all of the data on that computer to that third party, and thus it is not covered by the third-party doctrine. And even with an agreement that gives them the right to inspect files on the system to the extent necessary to effect repairs, that still does not grant them the right to inspect arbitrary, non-software files, which means at no point can it reasonably be considered to be a revelation of the existence of those files, much less of the contents of those files.
It seems prima facie obvious that giving hardware to a third party for repair purposes absolutely does not remove the expectation of privacy for data contained on that hardware. No Best Buy customer goes in for a computer repair thinking, "I'm giving all of my files to Best Buy for their employees' entertainment." You're giving them a computer to repair, with the expectation that your data will remain securely on that computer and will not leave that computer. In much the same way that storing a hard drive in a safety deposit box does not grant the bank the right to open the box without a warranty and give the files to law enforcement, neither can a computer repair grant Best Buy that right.
Additionally, as others have mentioned, there are fundamental chain of custody problems involved when non-law-enforcement personnel inspect a computer, to such an extent that any "evidence" obtained should be considered highly suspect to the point of being circumstantial, and arguably shouldn't even be sufficient to qualify as probable cause for a warranted search of the owner's home/office/email/*. But that issue is only relevant if the person opens up the computer and finds kiddie porn on the desktop, such that seeing it was an inevitable and normal part of the repair process. If the person had to even double-click on a folder called XXX to find the kiddie porn, we're back to fruit of the poisonous tree, and the evidence should be considered inadmissable—doubly so if law enforcement enticed those employees to break the law as part of gathering that evidence.
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I was locked up with a pedophile in Allenwood PA who was arrested and convicted based on child pornography found during an illegal search conducted by a third party. This is the third party search doctrine. When a non-government employee discovers something illegal, through illegal means, he can report it to the authorities and they can use that evidence. The Fourth Amendment protects you from illegal governmental search, not illegal search generally.
If a burglar breaks into your basement and finds a wom
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This is where the theory of law and the practice of law intersect at 60 mph with no crumple zones.
Everything you are saying is NOT being borne out in this guy's case.
Exactly. And if this trial result stands, everything dtgatwood said will be a quaint relic of history.
The GGP post could have said, "if this case proceeds along its current trajectory" or something else softening, but that is usually assumed.
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Because the FBI paying people makes them not 3rd party. I think the legal term is "agent of the state".
It does not necessarily make Best Buy employees agents of the State if the FBI happens to have enough dirt on the judge hearing the case or his family.
Just sayin'
Strat
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Paying bounties is very different than employing. Not sayin' it's right. Just sayin' the Feds have a history of this. Many, many confidential informants receive money for their work, but they're not agents of the state in court.
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Okay, IANAL, and all of that. However, when I was locked up the Feds provided us a subscription to a periodical called the Criminal Law Review. This gave summaries of cases and decisions with potential import for inmates who had appeals running. There were several types of cases that I always read; one of these was cases that involved the use of confidential informants, another was attempted entrapment defense.
In all of the cases of these two types that I ever read, I don't remember any Federal Appeals C
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Beyond that, your last sentence was "Informants that gain something after they obtain information are not considered agents." Isn't that exactly what happened in the case in question?
The question pertains to prior relationship and payments. If a Geek Squad technician found something and turned it over to law enforcement without any reward, that would be different. Also if the technician had no prior dealings with the FBI falls changes the case. In this case, the FBI proactively sought technicians beforehand to snoop for them in what could be considered an end-around the 4th Amendment.
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It's relevant because it means that the police can avoid the 4th amendment simply by having a 3rd party examine things instead of the police doing it directly. It's another word game that's being used to gut the 4th
I don't see it as 3rd party at all. If you are under the direct employ of a law enforcement agency (contracting, consulting, or otherwise), you should be bound by all of the legalities the parent organization is bound by.
There's only one way to describe their actions here; circumventing the law. And NO law-enforcement or government official would appreciate the tables being turned on them, so the activity should NOT be acceptable in any way, shape, or form.
We're also not talking about circumventing the
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Probably the government's position will be that they were not in the direct employ of the gov. They were private actors and received bounties for their efforts. This is their stance on confidential informants in drug cases, conspiacy cases and in some entrapment cases.
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ISP's can legally sell your data in the U.S., so agencies can just purchase your browsing history instead of getting a warrant.
This may be true, but the burden of proof is still outstanding as to which person in a multi-member household is responsible for questionable internet activity. Even more so if you also run a public WiFi hotspot (which could be justification for or against operating one).
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What makes you people this has any effect on anything?
IME getting access to records has a direct effect on if you have access to the records. What part are you having trouble with?
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What they're doing is what they always do. They're trying this with truly reprehensible criminals first. Few people are willing to see a CP criminal go free over what will be characterized as "a technicality". Then they get a favorable (for the FBI) precedent set. Later, they go after much more minor crimes, using the precedent that was set. After all, it's only a baby-step from there. This is the classical way to expand power.
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The guy was a gynecologic oncologist. There might be a non-purient reason for his having pictures of little girls hoohas on his computer. Were these patients of his? Was he researching a case? I wouldn't consider that against the law. Pediatricians see naked kids all day long. Doesn't make them perverts.
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No.
He consented in writing that any child porn would be turned over to the FBI.
He also consented that Geek Squad could search his hard drive to recover lost files, as they had to reformat it.
TFA:
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.
The only thing that was done wrong in this case was the FBI
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... the FBI misrepresented information when they applied for a warrant to search the mans home.