Throughout the past ten years, the FBI has at varying points in time maintained a particularly close relationship with Best Buy officials and used the company’s Geek Squad employees as informants. But the FBI refuses to confirm or deny key information about how the agency may potentially circumvent computer owners’ Fourth Amendment rights.
The Electronic Frontier Foundation (EFF) obtained a handful of documents in response to a Freedom of Information Act (FOIA) lawsuit filed in February of last year. EFF says they show the relationship between the FBI and Geek Squad employees is much “cozier” than they thought.
Nevertheless, the documents released were previously highlighted in a Washington Post report in April 2017. They were covered in the context of a child pornography case brought against a doctor named Mark Rettenmaier, and revelations led EFF to file a FOIA request for records.
The defense called attention in court filings to cooperation between the Louisville Division of the FBI and the Geek Squad as it tried to convince a judge to suppress evidence found on Rettenmaier’s hard drive. Attorneys referenced a memo on a “Cyber Working Group” meeting held at the Brooks, Kentucky, repair facility on September 9, 2008, which EFF obtained.
“The Louisville Division [of the FBI] has maintained close liaison with the Geek Squad management in an effort to glean case initiations and to support the division’s computer intrusion and cyber crime programs,” the memo states.
The memo acknowledges how the facility is “the principal repair location for all Best Buy computers east of the Rocky Mountains.”
“Computers taken to local Best Buy retail outlets west of the Rocky Mountains are sent to a repair facility in Chino, California. The Brooks facility is Best Buy’s largest facility, and it handles approximately five times the repair and recovery work than the Chino facility.” The facility “repairs and conducts data recovery on thousands of computers every day.”
In court filings, the defense mentioned there were “eight FBI informants at Geek Squad City” from 2007 to 2012. Multiple employees received payments ranging from $500-1000 for work as informants.
A document obtained in response to EFF’s FOIA lawsuit confirms the payment of $500 to one Geek Squad employee in 2011.
James Riddet, lead defense attorney for Rettenmaier, mentioned an FBI letter to the U.S. Attorney in Kentucky. “Under the control and direction of the FBI, the CW [confidential witness] agreed to notify the FBI when CW detects the presence of child pornography during the regular course of CW’s employment and is willing to testify in a court of law.”
But one Geek Squad employee who received a $500 payment apparently was “irritated” that the FBI gave them money and “tried to give it back.” The FBI would not take the money back. When the employee notified Best Buy’s legal department, it created a dilemma for Best Buy.
A statement released by Best Buy declared, “We have learned that four employees may have received payment after turning over alleged child pornography to the FBI. Any decision to accept payment was in very poor judgment and inconsistent with our training and policies. Three of these employees are no longer with the company and the fourth has been reprimanded and reassigned.”
One file Rettenmaier’s defense obtained indicated the Geek Squad employee was “writing a software program [that] would help them identify potential images of child pornography in their computer systems” and that “FBI investigative information/techniques [were] revealed to source for operational purposes.”
But a document with a half-page of handwritten notes that was released to EFF downplays the possibility of any conduct aimed at undermining any person’s constitutional rights. “[Nobody] ever asked to search for CP [child porn] on any device that he worked on,” and, “Not aware of anyone at company being instructed [to perform any actions].”
“We think the FBI’s use of Best Buy Geek Squad employees to search people’s computers without a warrant threatens to circumvent people’s constitutional rights,” EFF previously stated.
There is no evidence that FBI obtained warrants before the Geek Squad informants searched computers they were repairing. It is believed Geek Squad employees routinely search unallocated space for any illegal content that may be on a device and then alert the FBI after conducting “fishing expeditions” for criminal activity, and this is what the FBI trains them to do.
EFF sought “records about the extent to which [the FBI] directs and trains Best Buy employees to conduct warrantless searches of people’s devices.” As is clear, the government stonewalled EFF and only released documents that were already referred to by news media.
The FBI neither confirmed nor denied whether the agency has “similar relationships with other computer repair facilities or businesses.” The FBI also would not produce any documents that detailed procedures or “training materials” for cultivating informants at computer repair facilities.
It kept secret any documents that might detail whether the FBI makes any Fourth Amendment considerations when relying on Geek Squad employees to conduct warrantless searches that may help them initiate criminal investigations.
There also were no documents released on the issue of paying employees of a private company to act as informants, especially when management publicly opposes such payments; nor were there any documents on the subject of Geek Squad employees developing software for the FBI to search computers or other devices and whether this software may follow the same rules the FBI would have to follow if it were conducting searches.
Back in February 2017, a judge agreed with federal prosecutors that Rettenmaier “consented” to Geek Squad’s search, and it did not violate his Fourth Amendment rights. EFF disagreed with the ruling that Rettenmaier had consented to a “de-facto government search of his devices” and contended, “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.”
“Because the Fourth Amendment generally requires the FBI to obtain warrants before searching devices, the warrantless searches by Geek Squad personnel were the result of an unconstitutional search and thus any evidence obtained as a result of the illegal searches should be thrown out of court,” EFF previously argued.
EFF intends to challenge the FBI’s stonewalling in court some time during the spring.
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