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More FBI Snitches #160035
01/10/2017 04:04 AM
01/10/2017 04:04 AM
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ConSigCor Offline OP
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The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity

from the maybe-these-are-the-'smart-people'-who-can-fix-Comey's-encryption-&# dept

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.


"The time for war has not yet come, but it will come and that soon, and when it does come, my advice is to draw the sword and throw away the scabbard." Gen. T.J. Jackson, March 1861
Re: More FBI Snitches #160036
01/10/2017 06:43 AM
01/10/2017 06:43 AM
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The issue with that stuff is someone can email you the photo as an attachment or it is embedded in click bait and your instinct is to delete it. The kiddie porn hustlers usually have a bunch of elaborate protections on their computer files and large collections they get by exchanging them with other kiddie porn collectors.


Life liberty, and the pursuit of those who threaten them.

Trump: not the president America needs, but the president America deserves.
Re: More FBI Snitches #160037
01/10/2017 08:04 AM
01/10/2017 08:04 AM
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airforce Online content
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On a related note, the police are now keeping an eye on your tattoos, as well .

Personally, I don't know why anyone would pay to permanently mark their bodes (says the guy who got a tattoo during a drunken night in Saigon). I can spot a prison tattoo a mile away.

I doubt they would have much success enlisting tattoo artists to report anyone getting a "III%" tattoo, but you never know.

Onward and upward,
airforce

Re: More FBI Snitches #160038
01/13/2017 06:25 AM
01/13/2017 06:25 AM
Joined: Jan 2002
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Tulsa
airforce Online content
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The Geek Squad and the Fourth Amendment is a new article up at the Volokh Conspiracy that is well worth a read.

Quote
...This isn’t a new issue. There have been cases on computer repairmen turning over computers with child pornography going back at least as far as the 1990s. See, e.g., United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998). Among those early cases is United States v. Barth, 26 F. Supp.2d 929 (W.D. Tex. 1998), in which the computer repair technician was also a confidential informant for the FBI.

Here’s the basics of how the law applies. First, if the computer repairman is not deemed a government agent, then the repairman is permitted to turn over the computer to the government. The government can then reconstruct the search of the private-party repairman and use that to get a warrant. There’s currently a 2-2 circuit split on what it means to “reconstruct” the search without a warrant, as I explained in detail here . Two circuits (the 5th and 7th) say that the government can search the entire computer without a warrant based on the repairman’s private search. On the other hand, two circuits (the 6th and 11th) say that the government can look only at the files that the private party observed. The new case is in the 9th Circuit, which hasn’t yet taken a side on the split.

I know of one opinion arguing that a private computer repairman also has independent authority to consent to a government search of a computer, which would mean that the repairman can authorize any government search he likes. See United States v. Anderson, 2007 WL 1121319 (N.D.Ind. 2007). The reasoning of that opinion strikes me as quite weak, though, for reasons I won’t bore you with here.

There is less precedent on how the law applies if the computer repairman is considered a government agent, either at the outset or over the course of handing over that particular computer to the government. I think the issue becomes the scope of the computer owner’s consent under Florida v. Jimeno, 500 U.S. 248 (1991). Under Jimeno, the question is: How would a typical reasonable person familiar with the exchange between the agent and the computer owner understand the scope of consent? Jimeno ordinarily applies when the suspect knows he is consenting to a government search, but at least off the top of my head I would think it also applies to a search when the agent is effectively undercover.

According to the Post story, the government is arguing that the computer owner waived his Fourth Amendment rights because he signed a written form stating that “I am on notice that any product containing child pornography will be turned over to the authorities.” I’m skeptical about that argument. I don’t know the full context, but that language in isolation strikes me as most naturally read as notice that any discovered images would be turned over, not as an understanding that the computer repair technicians would search everywhere on the hard drive to discover such images. Scope of consent issues are always fact-bound, however, so it’s hard to say much more on that.

Finally, you might be wondering, what’s the line between a private-party search and a government agent search? There are no bright lines. And each circuit has its own formulation. In the 9th Circuit, where this case is being litigated, the case I know of best is United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982), Miller focused the agency inquiry on “(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.”

The fact-intensive nature of the Miller test may help explain why the judge is planning a factual hearing on the details of the relationship between the government and the repair technicians. In computer cases in particular, the line between a private-party search and a government agent search can be really hard to draw and can depend on pretty fine factual distinctions. See, e.g., United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003) (exploring the specifics of the relationship between an unidentified hacker and the government in deciding whether the hacker had become a government agent). As always, stay tuned.
Onward and upward,
airforce

Re: More FBI Snitches #160039
01/13/2017 12:27 PM
01/13/2017 12:27 PM
Joined: Sep 2002
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Gee, better keep kiddie porn off your computer then.

Sorry, my sympathy levels are kind of low for that sort of thing, and if you practice any reasonable amount of PERSEC/OPSEC on your PC, then you should know better once you hand a computer device over to any sort of commercial technician.

As for Tattoos, they tell a story, and cops want the stories. That's why everyone plays that game. It's a no brainer intelligence resource. Part of the reason I don't get that shit put on me. I have been tempted to, but never got around to it.


Life liberty, and the pursuit of those who threaten them.

Trump: not the president America needs, but the president America deserves.

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