The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity
The FBI Is Apparently Paying Geek Squad Members To Dig
Around In Computers For Evidence Of Criminal Activity
by Tim Cushing Mon, Jan 9th 2017 6:43am
Law enforcement has a number of informants working for it
and the companies that already pay their paychecks, like UPS, for example. It
also has a number of government employees working for the TSA, keeping their
eyes peeled for "suspicious" amounts of cash it can swoop in and
seize.
Unsurprisingly, the FBI also has a number of paid
informants. Some of these informants apparently work at Best Buy -- Geek Squad
by day, government informants by... well, also by day.
According to court records, Geek Squad technician John
"Trey" Westphal, an FBI informant, reported he accidentally located
on Rettenmaier's computer an image of "a fully nude, white prepubescent
female on her hands and knees on a bed, with a brown choker-type collar around
her neck." Westphal notified his boss, Justin Meade, also an FBI
informant, who alerted colleague Randall Ratliff, another FBI informant at Best
Buy, as well as the FBI. Claiming the image met the definition of child
pornography and was tied to a series of illicit pictures known as the
"Jenny" shots, agent Tracey Riley seized the hard drive.
Not necessarily a problem, considering companies
performing computer/electronic device repair are legally required to report
discovered child porn to law enforcement. The difference here is the paycheck.
This Geek Squad member had been paid $500 for digging around in customers'
computers and reporting his findings to the FBI. That changes the motivation
from legal obligation to a chance to earn extra cash by digging around in files
not essential to the repair work at hand.
More of a problem is the FBI's tactics. While it possibly
could have simply pointed to the legal obligation Best Buy has to report
discovered child porn, it proactively destroyed this argument by apparently
trying to cover up the origin of its investigation, as well as a couple of
warrantless searches.
Setting aside the issue of whether the search of
Rettenmaier's computer constituted an illegal search by private individuals
acting as government agents, the FBI undertook a series of dishonest measures
in hopes of building a case, according to James D. Riddet, Rettenmaier's San
Clemente-based defense attorney. Riddet says agents conducted two additional
searches of the computer without obtaining necessary warrants, lied to trick a
federal magistrate judge into authorizing a search warrant, then tried to cover
up their misdeeds by initially hiding records.
The "private search" issue is mentioned briefly
in OC Weekly's report, but should be examined more closely. Private searches
are acceptable, but the introduction of cash payments, as well as the FBI
having an official liaison with Best Buy suggests the searches aren't really
"private." Instead, the FBI appears to be using private searches to
route around warrant requirements. That's not permissible and even the FBI's
belief that going after the "worst of worst" isn't going to be enough
to salvage these warrantless searches.
As Andrew Fleischman points out at Fault Lines, the
government's spin on the paid "private search" issue -- that it's
"wild speculation" the Best Buy employee was acting as a paid
informant when he discovered the child porn -- doesn't hold up if the situation
is reversed. AUSA Anthony Brown's defensive statement is nothing more than the
noise of a double standard being erected.
Flipping the script for a minute, would an AUSA say it
was "wild speculation" that a man was a drug dealer when phone
records showed he regularly contacted a distributor, he was listed as a drug
dealer in a special book of drug dealers, and he had received $500.00 for
drugs? Sorry to break it to you, Mr. Brown, but once you start getting paid for
something, it's tough to argue you're just doing it for the love of the game.
In addition to these problems, the file discovered by the
Best Buy tech was in unallocated space... something that points to almost
nothing, legally-speaking.
[I]n Rettenmaier's case, the alleged "Jenny"
image was found on unallocated "trash" space, meaning it could only
be retrieved by "carving" with costly, highly sophisticated forensics
tools. In other words, it's arguable a computer's owner wouldn't know of its
existence. (For example, malware can secretly implant files.) Worse for the
FBI, a federal appellate court unequivocally declared in February 2011 (USA v.
Andrew Flyer) that pictures found on unallocated space did not constitute
knowing possession because it is impossible to determine when, why or who downloaded
them.
This important detail was apparently glossed over in the
FBI's warrant application to search Rettenmaier's home and personal devices.
In hopes of overcoming this obstacle, they performed a
sleight-of-hand maneuver, according to Riddet. The agents simply didn't alert
Judge Marc Goldman that the image in question had been buried in unallocated
space and, thus, secured deceitful authorization for a February 2012 raid on
Rettenmaier's Laguna Niguel residence.
Courts have shown an often-excessive amount of empathy
for the government's "outrageous" behavior when pursuing criminals.
The fact that there's child porn involved budges the needle in the government's
direction, but the obstacles the FBI has placed in its own way through its deceptive
behavior may prevent it from salvaging this case.
The case is already on very shaky ground, with the
presiding judge questioning agents' "odd memory losses," noting
several discrepancies between the FBI's reports and its testimony, and its
"perplexing" opposition to turning over documents the defense has
requested.
In any event, it appears the FBI has a vast network of
informants -- paid or otherwise -- working for both private companies and the
federal government. Considering the FBI is already the beneficiary of legal
reporting requirements, this move seems ill-advised. It jeopardizes the
legitimacy of the evidence, even before the FBI engages in the sort of
self-sabotaging acts it appears to have done here.
Underneath it all is the perplexing and disturbing
aversion to adhering to the Fourth Amendment we've seen time and time again
from law enforcement agencies, both at local and federal levels. Anything that
can be done to avoid seeking a warrant, and anything that creates an
obfuscatory paper trail, is deployed to make sure the accused faces an even
more uphill battle once they arrive in court.
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