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Tuesday, January 10, 2017

Best Buy national repair techs routinely search customer devices, act as "paid informers" for the FBI

by Gaius Publius

The Stasi was the "secret police" of communist East Germany. In 1989, about 1% of the population was used as "informers" (source).

(Note that the headline is in the present tense. We have no indication that this longstanding practice has stopped.)

Did you know that Best Buy's central computer repair facility — their so-called "Geek Squad" — contains at least three employees who are also regular informers for the FBI? And that these employees routinely search through computers and other devices that Best Buy customers send in for repair? And when they find something they think the FBI would be interested in, they turn over the information for rewards of up to $500?

That's a sideline business you probably didn't imagine existed — outside of the old Soviet Union or communist East Germany.

I want to look briefly at two aspects of this — first, the story itself (it's chilling) and second, its implications.

The Story — Best Buy Repair Techs Routinely Inform on Their Computer Repair Customers to the FBI

Let's look first at the story via the OC Weekly in Orange County, California. Note, as you read, the use of phrases like "FBI informant" and "paid FBI informant." We'll also look at other versions of this story. In all versions, Best Buy repair employees routinely search customers' computers for information they can sell to the FBI, and get paid if the FBI wants the info.

In the FBI-centered versions, the Best Buy employees act on their own and get paid as "honest citizens," as it were, merely offering tips, even though this practice seems to be routine. For the FBI, the fact that the same employees frequently offer tips for which they get paid doesn't make them "paid informers" in the sense that a regular street snitch regularly sells tips to cops.

For the Best Buy customer in question, that's a distinction without a difference. But you'll see that distinction made in articles about this incident, depending on whose side the writer seems to favor.

Now to the OC Weekly's write-up by R. Scott Moxley (h/t reddit user Spacewoman3, posting in the valuable link source r/WayOfTheBern; emphasis mine):
[Dr. Mark A.] Rettenmaier is a prominent Orange County physician and surgeon who had no idea that a Nov. 1, 2011, trip to a Mission Viejo Best Buy would jeopardize his freedom and eventually raise concerns about, at a minimum, FBI competency or, at worst, corruption. Unable to boot his HP Pavilion desktop computer, he sought the assistance of the store's Geek Squad. At the time, nobody knew the company's repair technicians routinely searched customers' devices for files that could earn them $500 windfalls as FBI informants. This case produced that national revelation.

According to court records, Geek Squad technician John "Trey" Westphal, an FBI informant, reported he accidentally [sic] 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.
The story goes on to detail rights violations committed by the FBI on its own, such as these:
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.

To convict someone of child-pornography charges, the government must prove the suspect knowingly possessed the image. But in 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.
The doctor's lawyer, of course, is contesting all of this, and the article's main point is that these discoveries have the FBI on the defensive. From the article's lead paragraph:
[A]n unusual child-pornography-possession case has placed officials on the defensive for nearly 26 months. Questions linger about law-enforcement honesty, unconstitutional searches, underhanded use of informants and twisted logic. Given that a judge recently ruled against government demands to derail a defense lawyer's dogged inquiry into the mess, United States of America v. Mark A. Rettenmaier is likely to produce additional courthouse embarrassments in 2017.
I want to ignore the wrangling between the court, the FBI and the attorneys for this piece and focus on the practices of Best Buy's employees and the government's defense of those practices. After discussing attempts to manipulate the court by withholding information in order to get authorization for a raid, the author notes:
Assistant U.S. Attorney M. Anthony Brown ... believes the "Jenny" image shouldn't be suppressed because it's only "wild speculation" that the Geek Squad performed searches at FBI instigation. To him, the defense is pushing a "flawed" theory slyly shifting focus to innocent FBI agents; he maintains that Rettenmaier—who is smart enough to have taught medicine at USC and UCLA—was dumb enough to seek Best Buy recovery of all of his computer files after knowingly storing child porn there.
Reading this, it's easy to see that the issue of what constitutes a "paid informant" is being obscured. After all, what counts as "FBI instigation"? If someone pays you regularly for something that she never directly asks for, is that "innocent" behavior or caused behavior ("instigation")?

Yes, Best Buy Did This Regularly

The article answers the questions above:
But the biggest issue remains whether Geek Squad technicians acted as secret law-enforcement agents and, thus, violated Fourth Amendment prohibitions against warrantless government searches. Riddet [the defendant's lawyer] claims records show "FBI and Best Buy made sure that during the period from 2007 to the present, there was always at least one supervisor who was an active informant." He also said, "The FBI appears to be able to access data at [Best Buy's main repair facility in Brooks, Kentucky] whenever they want." Calling the relationship between the agency and the Geek Squad relevant to pretrial motions, [Judge] Carney approved Riddet's request to question agents under oath.
The writer goes on to discuss the ins and outs of this particular case. But consider just what's above:
  • Best Buy routinely takes in customer computers for repair.
  • Those computers are, at least frequently, sent to a Best Buy's national repair facility in Kentucky.
  • Multiple people at that facility appear to be regular FBI informants.
  • From 2007 on, at least one supervisor on duty at any times was "an active informant" for the FBI.
And finally, from the article's lead:
  • Informing like for the FBI pays at least $500 each incident.
The LA Times handles this question similarly in a piece when the case first broke (my emphasis):
An employee at Best Buy's nationwide computer repair center served as a paid FBI informant who for years tipped off agents to illicit material found on customers' hard drives, according to the lawyer for a Newport Beach doctor facing child pornography charges as a result of information from the employee.

Federal authorities deny they directed the man to actively look for illegal activity. But the attorney alleges the FBI essentially used the employee to perform warrantless searches on electronics that passed through the massive maintenance facility outside Louisville, Ky., where technicians known as Geek Squad agents work on devices from across the country.
And note:
The Geek Squad had to use specialized technical tools to recover the photos because they were either damaged or had been deleted, according to court papers.
This contrasts with the Best Buy assertion that "Geek Squad technician John "Trey" Westphal, an FBI informant, reported he accidentally located [the image] on Rettenmaier's computer".

The Times thinks this case could turn into a constitutional issue, regardless of whether the doctor is guilty or innocent. (For the record, I'll note that the later (perhaps illegal as well) search of the doctor's other devices turned up what is asserted to be more incriminating pictures, mere possession of which is a "sex crime" in the U.S.)

The Implications

First point — This is an eager prosecutorial society; we really are a punishing bunch, we Americans. We've never left the world of Hawthorne's The Scarlet Letter. So we give our police great latitude, allowing them to shoot and kill almost anyone for almost any reason, so long as the stated reason is in the form "I was afraid for my safety." Our prosecutors have great latitude in putting as many of our fellows in prison as possible. Our judges routinely clear their court calendars using plea-bargained guilty verdicts sans trial. This is the American judicial system, and it looks nothing like Law and Order, which is mainly propaganda.

And we, the spectators, are happy as clams to see the guilty (and the innocent) tortured and punished — witness our entertainment and the many popular programs that vilify the unworthy, from Judge Judy and her ilk, to Jerry Springer knockoffs, to all of those Lockup-type programs (extremely popular, by the way) on MSNBC. We love to see the "wicked" get it, in media and in life, much more so than people in many other first-world countries do. Witness our incarceration rate, the highest in the world.

Thus we give our "law enforcement" personnel — cops of all stripes, prosecutors, courts of all stripes (including the secret ones) — great latitude in finding people to punish and then making them truly miserable for as long as possible. We have been like this as a society for some time, all done with most people's permission.

Second point — With a Democrat in the White House, we're inclined to think this setup is mainly well-managed (even when it obviously isn't). Thus it has our blessing, more or less — or at least it has the blessing of middle class and working class white people — the bulk of people who vote.

Third point — We therefore fail to ask the most obvious questions. For example, about this Best Buy case, we ought to be asking this:

How common is the practice of paid FBI informants spying on fellow citizens in the ordinary performance of their jobs?

Are other computer repair companies and facilities similarly infected (infiltrated) by government agents?

Are other businesses also infiltrated to this degree?

Are "sex crimes" the only activity paid FBI informers watch for?

Is political activity subject to this kind of spying?

How much will this practice widen under AG Beauregard Sessions and President Trump?

Much to think about. I don't see the practice ending soon. I do see this as the tip of what could be a very large iceberg.

(A version of this piece appeared at Down With Tyranny. GP article archive here.)