EFF Sues FBI For Refusing To Turn Over Documents About Its Geek Squad Informants

from the best-buys,-best-friends dept

Fri, Jun 2nd 2017 12:07pm — Tim Cushing

A child porn indictment in California has led to a full-fledged examination of the FBI's use of "private searches." Private searches, performed by citizens, can be used to instigate investigations and obtain warrants. In this case, the private searches were performed by Best Buy Geek Squad members, who came across alleged child porn images while fixing the defendant's computer.

Private searches during computer repairs are normal. But they're not roughly analogous to searches performed with a warrant. Companies that repair electronic devices are legally required to report discovered child porn to law enforcement. What they're not supposed to do, however, is dig through devices they're repairing in hopes of finding something illegal.

Most techs don't go looking for child porn. But the FBI's close relationship with Best Buy turned private searches into searches performed by paid informants. Once government money is introduced into the equation, the search can no longer be considered "private." The introduction of cash rewards also skews the incentives, possibly encouraging Geek Squad members to spend more time looking for illicit images than focusing on the repair job at hand.

Documents uncovered in this case strongly suggest the FBI has been using Best Buy repair center techs as confidential informants, paying them for their discoveries while claiming these warrantless, secondhand searches are nothing more than completely legal "private searches."

The EFF wants to know what the FBI knows about its long-running Best Buy partnership. The FBI isn't nearly as interested in making this information public. It sent a FOIA request to the FBI in early February. The FBI's first response was a Glomar. From the EFF's FOIA lawsuit [PDF]:

By letter to Plaintiff dated April 18, 2017, the FBI denied EFF’s request for agency records. The FBI stated, inter alia, that “it is the FBI’s policy to neither confirm nor deny the existence of any records which would tend to indicate or reveal whether an individual or organization is of investigatory interest to the FBI.”

The EFF immediately appealed this determination. Since then, the FBI has yet to respond. The EFF's lawsuit seeks a better response to its FOIA request, as well as a ruling finding in favor of its requested fee waiver. The EFF's decision to move forward with a FOIA lawsuit is the unfortunate result of the government's disinterest in fulfilling its FOIA obligations. There's hardly any action a citizen can take to speed up this process. Lawsuits are only marginally better than firing off reminder emails. Unfortunately, they're also a lot more expensive.

There's a good chance these documents -- should they ever be released by the FBI -- will show this sort of thing isn't limited to Best Buy repair centers.

We think that the FBI's use of Geek Squad informants is not an isolated event. Rather, it is a regular investigative tactic law enforcement employ to obtain digital evidence without first getting a warrant as the Fourth Amendment generally requires.

This bears watching. The FBI loves parallel construction and law enforcement in general loves anything that allows it to bypass obtaining warrants. Turning repair crews into informants serves these interests well.

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Filed Under: 4th amendment, fbi, foia, geek squad, informants, private searches
Companies: best buy, eff

29 Comments

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Ninja (profile), 2 Jun 2017 @ 11:48am

And they ask with a straight face why one would need to be a whistleblower these days given there are "official" channels for complaint. Channels you have either to beg pretty please with thousands of dollars in your hands, force it through with lengthy and costly lawsuits or just receive a middle finger in the and and be stuck with nothing. I hope thousands of Ed Snowdens rain on them like a Biblical plague.
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DeComposer (profile), 2 Jun 2017 @ 12:58pm

Planting Evidence
This seems like an open invitation for Geek Squad members to plant illegal content on the devices of someone who pissed them off, only to "discover" it, report it to the FBI, and collect the reward.
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Anonymous Coward, 2 Jun 2017 @ 1:12pm

look on the bright side...
at least people will start being nice to those poor verbally abused techs.

It will start to get around to be nice or risk becoming a sex offender!
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Annonymouse, 2 Jun 2017 @ 1:18pm

Re: look on the bright side...
I have had to deal with those alleged victims and I have little sympathy for the so-called experts thY deal directly with the public. The poor sobs who do the repairs in the back do deserve some pity but only some.
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John Snape (profile), 2 Jun 2017 @ 2:09pm

An idea
Why not, when a government agency refuses to respond to a legitimate FOIA request, just make it so the courts have to believe the very worst of the agency, and act accordingly?

For example, if you won't divulge the information about Geek Squad members and payments from the FBI, courts will assume all cases related to Geek Squad discoveries are illegal searches and all of them are thrown out with prejudice.
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Anonymous Coward, 2 Jun 2017 @ 3:35pm

State Actors
When a 3rd party is doing thing on behalf of, at the request of, or in return for payment, they are considered state actors. All restrictions that the government has on rights violations still applies to things that these state actors do on their behalf.
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Anonymous Coward, 2 Jun 2017 @ 3:37pm

Re: Planting Evidence
Chain of custody is instantly considered broken when a paid informant had access to the computer and then gets rewarded for "finding" the illegal things.
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Anonymous Coward, 2 Jun 2017 @ 3:38pm

Re: An idea
Better to hold their finances in escrow so no one gets paid in that agency until they are no longer a violating the law and our rights on a continual basis.
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Anonymous Coward, 2 Jun 2017 @ 4:15pm

Standung
How often is EFF going to waste time and taxpayer money just to be told they have no standing?
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Anonymous Coward, 2 Jun 2017 @ 4:23pm

Re: Standung
How often is the federal government going to waste taxpayer dollars defending its own unlawful actions?

FTFY
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That One Guy (profile), 2 Jun 2017 @ 4:59pm

Re: Re: Planting Evidence
The chain of custody should be considered instantly broken in such cases, unfortunately there can be a rather large divide between 'should be' and 'is' at times.
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Anonymous Coward, 2 Jun 2017 @ 6:12pm

Re: Re: Standung
Are the actions truly unlawful? Has SCOTUS ruled on this? Circuit court?

You didn't fix anything. You just added slant. Why not address the issue of standing?
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Anonymous Coward, 3 Jun 2017 @ 5:53am

Re: State Actors
Unfortunately a lot of people in law enforcement have god complexes and feel they are entitled to do whatever they want.
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Anonymous Coward, 3 Jun 2017 @ 5:58am

Re: Re: Re: Standung
> You didn't fix anything.

What a load. One doesn't have to "fix" a situation in order to comment on it.
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Anonymous Coward, 3 Jun 2017 @ 7:28am

Re: Re: Re: Standung
The only way to find out if they had standing would be to sue them.... oh dear.
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Rekrul, 3 Jun 2017 @ 1:32pm

Taken to its logical conclusion, the DEA could offer a reward to employees of a cleaning service for finding drugs in a customer's home. The ATF could offer rewards for finding illegal guns.
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Anonymous Coward, 3 Jun 2017 @ 4:53pm

Re: Re: Re: Re: Standung
Not really.

EFF has had cases kicked out before in similar circumstances because they were unable to produce a single person who was impacted by government action. This case seems to be about the same with EFF not really representing anyone except themselves but they don't show that they have been affected.
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William, 3 Jun 2017 @ 7:16pm

Wonder if EFF exceeded fair use by headlining their article with a huge, modified counterfeit "Geek Squad" logo altered to say "Gov't Squad"?
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Anonymous Coward, 3 Jun 2017 @ 11:11pm

Just another isolated incident.
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Anonymous Coward, 4 Jun 2017 @ 2:28am

Re: Re: Re: Re: Re: Standung
Ah, the old "if you didn't know you were illegally put under surveillance it's not illegal" argument.
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My_Name_Here, 4 Jun 2017 @ 5:15am

Fishing For Facts
EFF is doing what they usually do in these cases, which is defend nobody in particular against something that isn't totally known or understood, hoping somehow that they can force the government to disclose information they have no reason to disclose (like who works as an informant).

I am starting to think that EFF is working for the headline "EFF sues government" and not really worrying about the end result as much. It's all about getting your attention.
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Anonymous Coward, 4 Jun 2017 @ 10:31am

Re: Re: Re: Re: Re: Re: Standung
Yeah, also the old "the only crime is in getting caught" argument.
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Anonymous Coward, 4 Jun 2017 @ 10:34am

Re:

Taken to its logical conclusion, the DEA could offer a reward to employees of a cleaning service for finding drugs in a customer's home. The ATF could offer rewards for finding illegal guns.

Or auto mechanics for finding contraband in cars.
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Anonymous Coward, 4 Jun 2017 @ 4:51pm

Re: Re: Re: Re: Re: Re: Standung
The argument is only that to seek injunctive relief you have to show what you are seeking relief from. EFF had a hard time to show cause.
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Thad, 5 Jun 2017 @ 11:57am

Re: Fishing For Facts

It's all about getting your attention.

So how's that sense of irony working out for you, My_Name_Here?
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Thad, 5 Jun 2017 @ 11:58am

Re:
https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors
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TRX (profile), 6 Jun 2017 @ 3:46pm

> parallel construction

Or as it's known when someone else does it, "perjury."
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Bergman (profile), 6 Jun 2017 @ 6:38pm

Re: Re: Re: Planting Evidence
It doesn't help that a lot of defense lawyers, being unaware of the paid informant nature of the searches, fail to argue that point in court.
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Bergman (profile), 6 Jun 2017 @ 6:39pm

Re: An idea
I bet the FBI wouldn't accept a Glomar or a claim that there are no documents responsive to a subpoena they issued. And yet, it's also illegal to ignore FOIA.
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