FBI's Use of Paid Best Buy Informants Goes Deeper Than We Knew

https://gizmodo.com/fbis-use-of-paid-best-buy-informants-goes-deeper-than-w-1823561496

by dsl • 8 years ago

204 111 8 years ago

beezle• 8 years ago

Only a matter of time before we read about the FBI paid tech putting files on the device in order to get his bounty.

You'd hope in high profile cases (or really all cases), a hash of the entire drive could be taken upon seizure and given to a lawyer before any forensics started.

Don't know much about forensics and maybe this already happens, but is surely a good way for both sides to avoid unfounded accusations.

psyc• 8 years ago

The evidence would have been planted by the civilian tech before seizure.

triggercut• 8 years ago

IIRC in law enforcement situations where a HDD has been obtained through slightly more conventional means, chain of custody is as important (as it is for all evidence) as ensuring the state is maintained. There are many forensic hardware providers that specifically sell 'read only' readers to ensure that whilst in possession of the drive, it's state is preserved (as much as practicably possible).

naringas• 8 years ago

“discover material that may be child pornography and we have a legal and moral obligation to turn that material over to law enforcement.”

is this true? is there a legal obligation?

bunderbunder• 8 years ago

In the USA, it's state-by-state. Some only require it of certain professionals (e.g., doctors), and others require it of everyone.

hnaccy3• 8 years ago

What state(s) requires it of everyone?

snomad• 8 years ago

Shortly after it quotes him as saying

We have a moral and, in more than 20 states, a legal obligation to report these findings to law enforcement,”

With that specific number, I am guessing it is indeed a requirement.

I really wish we could get some clear 4th amendment boundaries for the digital age. On the surface, I am ok with this. But paying the Geek Squad techs seems to undermine the whole point of the thing.

I don't particularly find a FBI-company party in 2008 relevant to this story. Just hopeful dot-connecting.

lowpro• 8 years ago

I believe they're showing that Best Buy has intent to work with the FBI beyond what they say, and therefore can't be trusted regarding their public statement. It isn't enough to draw any conclusions, of course, but should cast doubt that they're being honest in their public statement. The average person probably already assumes they aren't being honest, but a journalist needs a reason to have such a doubt.

hermitdev• 8 years ago

With that specific number, I am guessing it is indeed a requirement.

I'm guessing here, because the language is ambiguous and the relevant states & laws are not mentioned, that the legal obligation exists if you should find suspected child pornography you must report it to the relevant legal authority. I highly doubt the law states something along the lines of if you're a computer repair technician you are legally obligated to run these forensic tools to local clandestine or non-hidden photos that may be child pornography. The former I could see an argument being made that failing to report could make you criminally complicit or even an accessory to the crime. The latter, I see as possible 1st or 4th amendment violations to the US Constitution (1st amendment violation in that it's possibly compelling speech, and for the 4th, the DOJ compelling a warrant-less search. By virtue of offering the bounty in this manner, it could be argued Best Buy is effectively acting as a page contractor of the DOJ).

Obligatory, I am not a lawyer. I'm merely speculating on possible legal arguments.

Morally, I'm torn on this. On one hand, I find child pornography morally reprehensible, yet on the other hand, I want these scum bags thrown in a dark, dank prison. In the end, I think, however, that this should constitute a 4th amendment violation. If this is to stand, what's the rate to be for the government to get anything they want to know about me? $100? $.01? gratis? any IRS inquiries to disappear? I think we need to revisit the 4th amendment to give explicit protection to data held by an external party.

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin

sambull• 8 years ago

Can you imagine a plumber having a moral obligation to search through your closet safe to find offending materials?

TheSpiceIsLife5• 8 years ago

What if the plumber is repairing, say, your toilet and finds a bunch of unlawful pictures hidden in there?

What if you call a plumber to repair your hot water system, and the plumber then uses a drain inspection camera to search all your plumbing, and everything connected to it, for unlawful pictures?

21• 8 years ago

This is more like a plumber finding a human bone in the pipes.

mjevans• 8 years ago

I'd argue that there's a moral one /assuming it falls in to your observation/.

There is /not/ a moral obligation to actively go looking for and judge someone as a normal individual. Rifling through another's possessions without probable cause is already wrong for actual law enforcement, let alone normal people.

I guess what I'm saying is, if in the course of normal actions I do something (like opening the web browser and the default tiles are... or the background of the desktop is) and it's obvious that this is something the individual went of the way to see / keep, that's one thing.

If it's some BS ad that probably got pulled in via automation that's another question. Once you pull in individuals politically motivated to be 'tough on crime' for re-election or future offices/career developments it's likely going to be at least a major hassle even if they're actually innocent of the intent to commit a crime.

EggsOnToast• 8 years ago

This could still be a grey area. Obviously pornography of young children could be identified by most people 99% of the time, the 1% being bizarre situations like mistaking a collection of cherub images for child pornography. But what about when the 'child' looks like a junior or senior teenager and so it's ambiguous as to weather they're of legal age or not? Is someone morally obligated to report potential child pornography in such a situation? A false report, even an accidental one, could cost an innocent person their freedom or a lot of money to preserve their freedom.

cryptonector• 8 years ago

There is generally an obligation to report child pornography, child sex abuse, and so on. Absolutely, and rightly so.

There is no obligation to search. But if you consented to a technically-unnecessary search and the tech has an incentive to do that search...

The only real question is whether the techs here were government actors. If the government pays them for the actions that nets them the evidence needed to convict, then I'd say the tech is a government actor indeed.

conmarap3• 8 years ago

People still get "compensated" for reporting to the authorities a sighting of a [wanted] criminal, so long that it leads to the capture of said criminal. This could be a similar case. If the device was turned in for a hard drive migration, for instance, and the employees stumbled upon this nightmarish content, I see nothing wrong with them (the employees) reporting it to the authorities. As a result, the authorities could have paid them [individually] a bounty.

TheSpiceIsLife5• 8 years ago

The image found on Rettenmaier’s hard drive was in an unallocated space, which typically requires forensic software to find

So say someone, known or unknown, emails you a bunch of unlawful zeros and ones, you open it or it displays automagically. Or you accidentally type a web address wrong and go to unlawful pictures dot com.

Anyway, you delete the file(s) and / or clear your browser cache. Your file system deletes the entry in the allocation table (or however it works) but the drive still has the relevant magnetic / electrical charges to recover the file using a data recovery tool.

Are you still in possession of the unlawful zeros and ones if you've deleted the files in the only manner you are aware of - assuming the average person doesn't understand the underlying technology???

meowface• 8 years ago

The data merely being present on your hard drive isn't enough for law enforcement to make a strong case. They'd also need to prove how it got there, and why.

TheSpiceIsLife5• 8 years ago

That is also my understanding.

So in the case where, as suggested in another comment, where a computer tech, or anyone with access to you device, plants the material in order to collect the bounty, while probably annoying and stressful, should auto-resolve during the investigation / discovery.

Still a bit of a worry.

Edit: fixed a thing

manfredo• 8 years ago

An interesting Defcon talk on the subject: https://youtu.be/NG9Cg_vBKOg

The last case is most relevant to this topic. All the other ones are about people trying to steal company info.

idoh• 8 years ago

That is not always true. Possession alone can sometimes be a crime if the crime has strict liability. See https://kellerlawoffices.com/child-pornography-accidental-po...

oceanghost• 8 years ago

It's a great way to frame people.

hnaccy3• 8 years ago

There's likely an affirmative defense, e.g., less than three images and you took reasonable measures to destroy them.

https://www.law.cornell.edu/uscode/text/18/2252A

gizmo686• 8 years ago

That less than three image requirement seems really strict. If my browser were to simply pre-fetch a child porn site, I would probably have more than 3 illegal images on my computer.

AFNobody2• 8 years ago

If there is a limit and the goal is offense, you simply send double it.

dmix• 8 years ago

I don't think a few files are enough to do a child porn conviction. There's enough plausible deniability there. But I could be wrong...

LastMuel• 8 years ago

Even so, simply going to court on something like this could have staggering consequences.

AFNobody2• 8 years ago

The accusation and court costs (which you would not be refunded for) would likely be career destroying by the time it was resolved.

userbinator• 8 years ago

a bunch of unlawful zeros and ones

...and I feel that is the root of the problem.

I'm against real pedophiles and child abuse as much as anyone, but it feels to me like possession of otherwise illegal digital or virtual information should really be decriminalised, simply due to its immensely malleable and interpretable nature. It reminds me of things like "illegal primes" and such. Moreover, people can already perform, in the virtual world of games, acts that would be highly illegal in the real world --- and yet this still remains legal.

Maybe after we get over the War on Drugs...

mc32• 8 years ago

Laws can persevere in the face of technology which pretty much rendered them obsolete. But they remain artefacts of a different time. Let me present you Japan requiring vanilla porn which depicts pubic hair on and around reproductive areas of people to be fuzzed: https://en.wikipedia.org/wiki/Pornography_in_Japan#Censorshi...

They seem to date from back in the Meiji restoration period. But this is Japan which is also known for the Soaplands, so go figure.

nezzle• 8 years ago

You can also commit crimes in novels or roleplaying games that are illegal. That's different from supporting a market that causes child abuse.

Possessing digital/virtual information that required abuse endorses abuse. Entropy is our friend here; only an extremely rare set of bits results from child abuse. You won't just find it.

Even fiction or photoshop is illegal. Your argument is much more applicable here, but seeing how society treats even inactive pedophiles as criminals rather than sick, I don't think it'll be very popular.

edanm• 8 years ago

"[...] but it feels to me like possession of otherwise illegal digital or virtual information should really be decriminalised, simply due to its immensely malleable and interpretable nature."

I'm not really sure what you mean here. What makes something being "digital" or "virtual" special? Isn't the content/message more important than the way it is stored and transmitted?

I mean, concretely, you really think if someone has an illegal picture on their computer, and you can prove they were aware of it, that should be treated differently than them having that same picture only printed?

If someone sends an email to hire an assassin, is the fact that it was a digital message so relevant?

sathackr3• 8 years ago

IANAL but I have read a ton of case law on similar subjects involving possession.

In the case of Rettenmaier, the possession laws work almost identical to drug possession laws.

When the contraband is not in actual possession(physically on the persons body, in pocket, etc...) then they must use the rules of constructive possession.

(At least in FL, and many other states are similar)

For constructive possession, they must prove:

1. The person had knowledge of the presence of the contraband

2. The person had the ability to exercise dominion and control over the contraband.

There used to be a 3rd rule "Knowledge of the illicit/illegal nature of the contraband" -- but IIRC that one got thrown out a few years ago making most possession crimes strict-liability.

For files in unallocated space, without any other evidence, neither of the rules could be satisfied and a good lawyer would get it dismissed before it ever went to trial. Now, if in an interview, the subject 'confesses,' then they may have 'evidence' of either rule, and the case can go to a jury for the facts to be decided.

There was a case in FL(a quick search didn't find it again) of a person driving a box truck full of marijuana that had a padlock on the doors to the cargo compartment. They were pulled over and the officers could smell the marijuana from outside the truck. They were convicted but the case was overturned on appeal because there was no evidence that the driver knew what marijuana smelled like (no knowledge of its presence) and no evidence that the driver had a key to the locked cargo compartment (no ability to exercise dominion or control)

https://www.law.cornell.edu/wex/constructive_possession

http://www.justiceflorida.com/when-is-someone-in-constructiv...

jacobevelyn• 8 years ago

Thanks for all the info! The case you described also sounded familiar to me so I set out trying to find it. No luck though; the closest I could come was California v. Acevedo[^1] and its related cases like United States v. Chadwick.

[1] https://en.wikipedia.org/wiki/California_v._Acevedo

lacklery• 8 years ago

it could be used for further inquiry or investigation. in the case of the computer the owner would not even know.

awesomepantsm• 8 years ago

There was a case I read which said roughly that, yes, if you clear your cache, and are not technically savvy enough to know the files could be recovered, then as far as you knew, the files were actually gone, and you no longer "possess" them legally.

Of course, proving that you are an idiot is always a great start to a trial, but it's worked in the past.

duxup• 8 years ago

Well if you are technically savvy... maybe you'd go a step further too and then you do think they're gone, its a whole other question... or the same one.

zenhack• 8 years ago

I don't think not knowing enough about computers to realize that "delete" doesn't actually delete the data qualifies someone as an idiot.

TACIXAT2• 8 years ago

The case got dismissed because of that, which is really unfortunate because they found child pornography on 5 of his other devices when they searched his home.

TheSpiceIsLife5• 8 years ago

I’ve read sentencing remarks on other cases where, although the initial evidence would have been struck for whatever reason, the weight of evidence found upon subsequent searches during the investigation resulted in the case still going to trial and a guilty verdict being handed down.

Some of those cases have gone to appeal and been reversed by higher courts.

Such is the nature of an adversarial court system predicated upon the rule of law.

We, as a society, have, and continue to, make these trade offs.

Having been ground through the court system for drug trafficking, and been lucky enough to have the evidence struck at pre-trial conference due to a very similar case where the defendant was found guilty but the decision later reversed on appeal due to illegal police search...

I, personally, reserve my judgement on all cases that make it to trial, and prefer to read about them as a curiosity.

Edited to add: I strongly support the idea that law enforcement shouldn’t be searching people’s homes illegally, and that anything found as a result of such a search should be in admissible.

We need strong privacy protections, and if that means some crime goes under reported... well, so be it.

saas_co_de2• 8 years ago

Anyway, you delete the file(s) and / or clear your browser cache

If you are in possession of evidence of a crime you are supposed to report it to the police. If you delete it you are destroying evidence of criminal activity.

For an alternative scenario: suppose you find a dead body in your living room. Should you A) call be police B) hack it up in your bath tub and dump it in the river.

Even if you do B you probably won't get convicted of murder, but you are probably going to be under investigation for a lot longer than A.

_qbxp• 8 years ago

I've wanted to run forensics tools on my computer for a while, just to see what type of information I leave behind. Will that old resume I deleted 5-years ago show up on my HD? Will my personal backup SMS files that I copied to a Veracrypt volume and deleted with BleachBit still be retrievable? Not sure how to be able to access the "real-deal" forensic tools.

will_brown• 8 years ago

From a legal perspective, this is a common game of cat and mouse law enforcement regularly uses to circumvent the 4th amendment prohibition on unreasonable search and seizures without a warrant.

In other words if law enforcement illegally obtains evidence, that evidence can be suppressed and all evidence as a result (fruit of the poisonous tree doctrine). But the 4th amendment only applies to the government, so a non government actor can otherwise illegally obtain evidence (break in to your home and steal said evidence and turn it over to law enforcement) and you would not be able to suppress the evidence because the government didn’t violate your 4th amendment rights, another private citizen did.

In this case you get entities arguing geek squad is the government/acting on behalf the government, presumably because they took some small payments, on the other hand you have the governments arguement that geek squad is not acting on behalf of the government and in fact the criminals signed a contract allowing geek squad to search and seize evidence of a crime from the computers.

It’s a well settled area of law, but it’s controversial.

akira25012• 8 years ago

so a non government actor can otherwise illegally obtain evidence

A critical point is the police can't directly or indirectly _solicit_ this behavior. That would be a criminal act in and of itself, but it would maintain your 4th amendment rights.

JumpCrisscross• 8 years ago

you would not be able to suppress the evidence because the government didn’t violate your 4th amendment rights, another private citizen did

Could you bring a civil suit against the informant? Has anyone?

gamblor956• 8 years ago

Yes, you could bring an invasion of privacy suit against them. I'm not aware of anyone having done so since usually informant doesn't have the resources to justify that sort of lawsuit.

And in the case of Best Buy, they're not acting illegally in the situations described in the article.

sbierwagen• 8 years ago

Fun fact: oil change places sell your odometer reading to your car insurer, who may increase your rates if you drove more miles than you said you would: https://splinternews.com/how-car-insurance-companies-spy-on-...

miketery• 8 years ago

How is this legal for the oil shop to do?

rdmsr• 8 years ago

It’s probably implied by something deep in the TOS.

akira25012• 8 years ago

I'm not sure your odometer readings qualify as protected information. More importantly, on many cars, it's in public view.

So, what's the difference from the oil shop selling this data or from the insurance agent driving to your house and just looking through your side window?

astura2• 8 years ago

How would it be illegal? If someone came into my business and I noticed something about them, unless it's something specifically protected by law like health information, I'm more or less free to tell others about what I saw. Or even show the public the CCTV footage of what I saw, for example: http://www.independent.co.uk/news/world/americas/espn-report...

This sort of thing might be regulated under the FCRA, but other than that, companies are pretty free to talk about you to others. Just like how you're free to talk about them to others.

dboreham• 8 years ago

Because someone is making money.

rpcope1• 8 years ago

Sounds like another excellent reason to change your own oil. Many lube places end up putting inferior filters on vehicles anyways, and if you do it yourself, you can know that good oil and a good filter went on the car.

astura2• 8 years ago

They will probably know your milage anyways. Oftentimes the state requires all registered vehicles to be inspected or emissions tested regularly. I recall that my odometer reading was noted on the inspection forms. I also had to note the odometer reading when I registered the car in the first place, though that one was on the honor system. I have no reason to believe the state doesn't share that information with insurance companies.

farnsworthy• 8 years ago

Or under/over-tighten, forget the oil, strip the mount. But you need a garage and jack (curb?), oil disposal, etc.

(It's nice not having a car anymore.)

wmil• 8 years ago

Worse than that, if they get lazy and misreport your mileage a few times your car can get flagged as having miles rolled back. Which will destroy its resale value.

gambiting2• 8 years ago

I've got caught by this, took some explaining to straighten out. I always have my on board computer set to display distance in kilometres, but I live in UK - and once, a technician logged my mileage using the value in kilometres, but for the next service they switched to miles - and I got some questions from Mercedes how come my mileage went down between visits to the garage.

dawnerd• 8 years ago

I assumed shops would report it all anyways since services show up on carfax.

gowld4• 8 years ago

What a ridiculous rigamarole instead of simply requiring that policy holders check in once per year at a registered dealership or mechanic shop.

mulmen• 8 years ago

How would registering dealers or mechanics change the incentives? Insurance companies already created relationships with the oil change places, how would the name on the building change the outcome?

crottypeter2• 8 years ago

Hang on ... mechanic shop is different to oil change place? Is this a USA-only thing?

arca_vorago• 8 years ago

Violation of the 3rd amendment if trojan/rat installed. Chilling effect potentially violation of 1st amendment due to going public. Workaround violation of 4th amendment.

Get a fucking warrant. It's the law. The supreme law of the land in fact.

ps. informants are the real criminals, they just want to make it seem noble when they violate the rights of people en mass because they caught a bad guy via fruit of the poison tree

kevin_thibedeau2• 8 years ago

What legitimate purpose would a Best Buy employee have scanning unallocated storage specifically looking for images? It sounds like they were deliberately running FBI provided porn detection software. That is way beyond the scope of what Best Buy's employees should be permitted to do.

wmf• 8 years ago

Maybe the customer asked the Geek Squad to recover some deleted files.

kevin_thibedeau2• 8 years ago

They aren't stored in unallocated space. The only legit thing to look for there are virus signatures.

dvtv75• 8 years ago

About a decade ago, I worked at a beige box store. Someone brought in just his hard drive, and asked me to recover all his files, as his thesis was on it. So, I ran our recovery software (can't recall what it was) and found the drive was completely blank. No system files, no data, no temp files, absolutely nothing. The customer didn't seem upset or irritated at all, and thanked me, paid his bill and left.

At the time, that puzzled me a bit, but now it occurs to me that he may just have been making sure his data was destroyed.

saas_co_de2• 8 years ago

That is way beyond the scope of what Best Buy's employees should be permitted to do

"Best Buy itself is authorized by customers to search the devices"

According to the article customers sign a contract specifically giving Best Buy authorization to do this.

mrguyorama• 8 years ago

That strikes me as odd. Why wouldn't they sell "Recover your deleted files" as an addon service?

TACIXAT2• 8 years ago

The original image found by Best Buy techs was in unallocated space which did not hold up in court as justification for a warrant. Unfortunately, the charges against him have been dropped. The accused had child pornography on 5 devices when the FBI searched his home.

upofadown• 8 years ago

I guess this is another example of the sort of tension caused when we make laws intended to have law enforcement save us from ourselves.

So you work for the child porn police. You sit in your office and wait for someone to call you ... but no one does. It turns out that the people who have and trade child porn are not interested in talking to you. Everyone else tends to avoid child porn. So what do you do? The very fact that you are being paid to police child porn means that the citizens must agree that you should be able to do your job. So that means that it is OK to start rooting around in the normally private places that child porn is stored. So you do that.

Now the citizens are complaining that you are invading their privacy. Well OK then. Why did was this law made if it was not intended to be enforced? Oh, it was intended to be enforced? Whatever, this is stupid, so you continue doing your job, but in total secrecy, now that it is obvious that that is the only way you are going to to be able to do your job.

A good employee is often willing and able to compensate for the irrationality of management. This is a common problem in all forms of human endeavour.

Slansitartop• 8 years ago

I'm thinking it might be a good idea to run a Boot & Nuke on any used computer or used hard disk you get. Who knows what the previous owner put there?

diyseguy• 8 years ago

I'm surprised they have to resort to this. I thought they already had backdoors into our digital private lives.

FBI's Use of Paid Best Buy Informants Goes Deeper Than We Knew

Related Stories