After a year-long FOIA battle the Electronic Frontier Foundation (EFF) recently obtained over a hundred pages of documents from the FBI on their 'particularly close relationship' with Geek Squad. They reveal that the Bureau has informants inside the company who perform searches on customers' computers and report illicit materials back to the FBI.
Sputnik spoke with Aaron Mackey, staff attorney for the EFF, who highlighted how the Bureau and the Geek Squad repair facility in Kentucky have worked together for a decade. Mackey commented:
"The most important new information is about the relationship between the repair facility and the FBI that goes back to at least 2008."
The New Documentsmemo from 2008 shows that Best Buy hosted a meeting of the FBI's Cyber Working Group at the Kentucky facility. FBI agents were taken on a tour of the premises, and documents describe how the agency's Louisville field office, ‘has maintained close liaison with the Geek Squad's management in an effort to glean case initiations and to support the division's Computer Intrusion and Cyber Crime programs.'
These 'case initiations' include paying Geek Squad employees to search customers' devices for illicit content, including child pornography. A fax records how the Louisville office paid $500 to a confidential informant inside Geek Squad, apparently as a reward for finding potentially illegal material on a computer that had been sent for repair. These payments from the FBI first emerged during legal proceedings against Mark Rettenmaier, a doctor charged with possession of child pornography after his computer was sent to the Kentucky repair facility.
The records show how over the years the FBI and Geek Squad developed a process for investigating the computers sent to Kentucky for repairs. A series of FBI investigations began when Geek Squad employees searched the computers, and then called the Louisville field office when they found suspected child pornography. An FBI agent then went to the facility to view the images or video for himself and assess whether the content was illegal. It was only at this point, after the FBI agent had already seen the computer files, that the Bureau applied for search warrants. This is what happened in Rettenmaier's case, though the FBI later admitted that the image that instigated their investigation did not meet the legal definition of illicit pornography.
An'end run' around the Fourth Amendment
That these searches are being conducted by paid government informants, without a warrant or any kind of judicial oversight, begs the question of whether the FBI are sidestepping the Fourth Amendment rights of the people they are investigating. The EFF commented:
‘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.'
Sputnik spoke exclusively to constitutional lawyer and president of the Rutherford Institute John Whitehead, who said that in his view the FBI are breaching the rights of their targets by using Geek Squad employees. Whitehead explained that the Fourth Amendment provisions of the US constitution only apply to ‘government actors'. He elaborated:
"If a Federal Express employees searches, he find contraband and turns it over to the police, then there's no Fourth Amendment violation because the search was conducted by a private, non-government employee."
However, Whitehead made clear that the FBI's relationship with Geek Squad is a violation, because the government are using private sector workers as 'proxies':
"The fact that the government had paid or directed a Geek Squad employee to snoop through customers' computers serves to indicate that the employees, although they're not direct government employees, are acting as proxies for the government. If the government is doing an end run and using employees like that then I think the Fourth Amendment should apply, especially if they're paying them."
In Whitehead's view, ‘the courts are not keen on protecting the Fourth Amendment in this country', citing the Rettenmaier case where the judge ruled that by sending his computer to the Geek Squad he had consented to the search. The EFF also took issue with this ruling, saying:
"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."
Documents disclosed under FOIA show the @FBI paid @GeekSquad staff to inform them of illegal content on the devices of customers: https://t.co/Jv8olgaOAP— Sunlight Foundation (@SunFoundation) March 6, 2018
The @EFF says that may be a violation of the Fourth Amendment. It looks like a warrantless search of "personal papers" to us.
The Future for Fourth Amendment Rights
However, the EFF have not given up the fight. Mackey made clear that while ‘the FBI believe it has complied with our FOIA request' they are still trying to force the Bureau to release more records, especially on the relationship with other companies that are similar to Geek Squad. In the coming months the EFF and the FBI will engage in the next phase of this battle for information, with Mackey saying ‘we hope that this will ultimately lead to the court ordering the release of additional documents.'
Whitehead said that he foresees more legal challenges on this issue, as the FBI continue to use informants and other warrantless methods of surveillance on a large scale. As he put it:
"We live in a total surveillance state right now and most Americans don't really care but when it comes home and you have someone knocking at your door or a SWAT team raid coming in, then you start to care."