Best Buy’s “Snitch Squad”
January 6, 2017 (Fault Lines) — It must be tremendous fun being a journalist in Orange County on the prosecutorial misconduct beat. Walk in the courthouse door and there are probably five stories brewing that week worthy of public excoriation. The OCweekly adds another one.
The FBI is hiring Best Buy employees (members of the Geek Squad) to sift through computers brought in for repair to find evidence of criminal activity. So when Mark Rettenmaier brought in his HP Pavilion desktop computer, one of these informants “accidentally” found a picture of what could be a nude underage girl. The informant sent in his tip for a five hundred dollar windfall and Rettenmaier got federally indicted. A later search warrant turned up a treasure trove of images at Rettenmaier’s home.
Now the FBI agents weren’t totally upfront with the magistrate when they went seeking that search warrant. They forgot to mention, for instance, that the photo had been deleted and was only viewable using special forensic software (casting further doubt on the snitch’s claim of accidental discovey). This is significant because the 9th Circuit held in 2011 that the government needs more than the mere presence of child pornography in the unallocated portion of a hard drive to prove knowing possession.
And of course, AUSA Anthony Brown claims, according to the article, that there is only “wild speculation” that the Best Buy employee was acting as a federal informant. After all, the only evidence the defense had was that the Best Buy employee was an official informant in the FBI registry, had contacted the FBI more than a dozen times, and had been paid $500.00 for informing.
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.
Of course, this whole mess brings to mind one of our current and most pressing 4th Amendment boondoggles. In 1979, the US Supreme Court decided a case that, at the time, seemed to have few implications. In Smith v. Maryland, it held that Baltimore police could remotely monitor all of the calls made by a robbery suspect without warrant, reasoning that a person could have no expectation that the phone company wouldn’t know who he called—in fact, it needed that information to function.
In a world where business is increasingly conducted over wires and through companies, the ruling would turn out to be a bonanza, freeing the government to sift through people’s e-mails, phone records, and even location data without the burdens of a neutral magistrate or probable cause.
And the government decided to carry it one step further—requiring companies to act as informers by keeping detailed records so that it could later be hoovered up into the vast information network. In theory, these rules were designed to protect us against terrorism, but in practice, they are more likely to be used to perpetuate the drug war or go after people who loudly hold unpopular opinions.
The cover that the government is using in this case is that Best Buy employees are already required to report any evidence of child pornography that they uncover. Thus, the payments they receive for doing it are just coincidental. And of course, they aren’t the only mandatory reporters.
Thus the third party doctrine has turned into something of a monster. It frees the government from having to conduct its own invasive searches of our lives and property to search for wrongdoing because it can simply require others to do it for them. Then, when the company complies with federal law or in exchange for a cash payment, the feds innocently whistle with their hands in their pockets, claiming they had nothing to do with the disclosure and so no 4th Amendment protections should apply.
This is, in short, a clusterf**k. In a world where more and more devices are marketed as “smart,” despite potentially beaming our private conversations directly into the government’s ears, there may not be such a thing as a reasonable expectation of privacy any more.
The right to be free of search and seizure doesn’t exist so that criminals can go free. It exists because we are all criminals, and the easy discovery of that fact allows the government to pick and choose who to pursue. But the 4th Amendment doesn’t mean much if it leaves us at the mercy of any “genius” or “geek” or robotic microphone we leave in our home. If the government can get around it by simply offering cash rewards to the people who have access to our personal lives, then the Constitution has been gamed, and we are all the losers.