The Justice Department was sued Wednesday by a privacy group seeking information on the FBI’s alleged recruitment of Best Buy employees to search consumer computers for child pornography during repairs.
The Electronic Frontier Foundation (EFF) filed a Freedom of Information Act lawsuit against the Justice Department, demanding access to records about any FBI training and payment to Geek Squad workers to search customer computers without a court warrant.
At issue isn’t the criminality of child pornography or efforts to stop the exploitation of children by sexual predators. EFF is concerned that the FBI may be violating the constitutional requirement that law enforcement agencies obtain judge-approved search warrants, based on evidence there is probable cause of a crime, to search computers.
“Informants who are trained, directed, and paid by the FBI to conduct searches for the agency are acting as government agents,” EFF civil liberties director David Greene said in a written statement. “The FBI cannot bypass the Constitution’s warrant requirement by having its informants search people’s computers at its direction and command.”
The San Francisco-based non-profit privacy group sued the Justice Department after it refused a request for documents about how the FBI recruits, trains, and pays Best Buy workers to find illegal child pornography on customer computers sent to Best Buy for repairs.
“The public has a right to know how the FBI uses computer repair technicians to carry out searches the agents themselves cannot do without a warrant,” EFF senior counsel David Sobel said in a statement. “People authorize Best Buy employees to fix their computers, not conduct unconstitutional searches on the FBI’s behalf.”
The FBI refused to provide records to EFF based on the agency’s policy of not confirming or denying ongoing investigations.
But court documents in federal court in Santa Ana, California, argue that the FBI has launched a program of training and paying Geek Squad employees to look for child pornography on customer computers sent in for repairs, and to report the porn to authorities.
The OC Weekly first reported in March that court documents revealed an “extensive secret relationship . . . between the FBI and Best Buy’s Geek Squad, including evidence the agency trained company technicians on law-enforcement operational tactics, shared lists of targeted citizens and, to covertly increase surveillance of the public, encouraged searches of computers even when unrelated to a customer’s request for repairs.”
The relationship between the FBI and Best Buy came to light in the criminal case of U.S. v. Rettenmaier.
Dr. Mark Rettenmaier, a Newport Beach, California, obstetrics and gynecology specialist, is charged with knowingly possessing child pornography after Geek Squad employees reported to authorities that they allegedly found an illicit image during repairs of his computer in 2011. The criminal case was delayed after Rettenmair challenged the search of his computer and his home.
Rettenmaier’s lawyers argue that sealed government documents reveal the FBI trained and paid Geek Squad employees, turning them into FBI agents, and therefore would have required a search warrant before Geek Squad employees could search the doctor’s computer, according court documents cited by the Washington Post. Best Buy says it does not work for the FBI but admits that some employees were paid by the FBI.
The company in March said any decision by employees to accept payment was "very poor judgment and inconsistent with our training and policies." It said three of the four employees were no longer with Best Buy and the fourth had been "reprimanded and reassigned."
Prosecutors say authorities obtained a search warrant for the doctor’s computer and home after Best Buy employees reported alleged evidence of child pornography to authorities. The warrant-enabled search led to the discovery of “thousands of images of child pornography,” according to a brief by assistant U.S. attorneys Anthony Brown and Gregory Scally.
“The Fourth Amendment is offended by none of this,” federal prosecutors wrote in a court filing. “Nothing unreasonable occurred here, and there was no arbitrary invasion of anyone’s privacy by governmental officials… and there’s not a shred of evidence that anyone at the FBI directed anyone at Geek Squad City to detect and locate child pornography.”