Comment by 6stringmerc | Hacker News Reader

Comment by 6stringmerc | Hacker News Reader

As a political independent, one very concerned with personal privacy, yet also with conduct in society as a whole according to rules / laws / expectations, I think here's the crux of the argument:

>The case raises issues about privacy and the government use of informants. If a customer turns over their computer for repair, do they forfeit their expectation of privacy, and their Fourth Amendment protection from unreasonable searches?

This would be a good piece for the legal eagles on here to mull over I think. In my view, a business transaction should be defined; in the way First Amendment doesn't mean diddly on Twitter, Fourth Amendment doesn't apply in a private party exchange that is open ended.

>Best Buy searching a computer is legal — the customer authorized it, and the law does not prohibit private searches. But if Best Buy serves as an arm of the government, then a warrant or specific consent is needed.

Well how about that! Pretty clear cut, except for the interjected of OOOOH BUT WHAT IF GOVERNMENT angle. If an Electrician stumbles upon a drug lab after being hired by a private party, then reports the crime and is potentially compensated, do I have a problem with that? The Electrician was functioning as an Electrician, not as a government agent. I'm actually kind of okay with private citizens having concerns about inheriting illegal activity knowledge and being, well, powerless. That leads to vigilantism maybe?

I'd like to think, hard as it might be from time to time, that the justice system will function as intended, and this is a Defense Attorney holding a deck of cards that pretty much all allude to guilt, so attacking the source is a reasonable move. Get the evidence thrown out, right? Except I don't think it's so easy in this case. Maybe when somebody starts going door-to-door offering computer repair services but really are just on the payroll by an LEO, yeah, a line has been crossed. Hm.

> The Electrician was functioning as an Electrician, not as a government agent.

I don't think your example vindicates Best Buy, but rather, simply repeats the central question of the case: was the Geek Squad employee simply functioning as a Geek Squad employee?

The prosecution has argued that an employee who happens to stumble on images of child pornography (analogous to your electrician stumbling on a drug lab) is not acting as an agent of the government. I'm inclined to agree with that judgement.

On the other hand, if the employee was conducting extra thorough searches, scrutinizing the files on any customer storage media, or otherwise performing surveillance tasks that had nothing to do with his job, then it seems apparent that the employee was acting as an agent of the law in accordance with a financial incentive from the FBI. It doesn't help, in this case, that the employee lied about having been compensated by the FBI.

Ultimately, this particular case will come down to the details of how and why the employee stumbled across these images. As a general principle, however, it seems wrong to me that any computer in for miscellaneous repairs (touchpad/screen replacement, battery refurbish, etc) should be subject to a search for illegal data pursuant to an FBI incentives program.

I think it comes down to whether these people are acting on their own initiative or whether they're being told to do this stuff beforehand.

To take your electrician example, I have no problem with the scenario you present. Where I'd have a problem is if the police set up a program to recruit electricians and ask them to keep an eye out for illegal activities, and promised them payment if they find stuff.

Protections against illegal searches can't be this easy to work around, otherwise what would be the point of having them? If this was sufficient to satisfy the 4th Amendment, then any time the police wanted to search a house, all they'd have to do is, say, contact a local utility and have one of their employees pretend to check the property and report back all the illegal stuff they saw. (And I'm sure someone will post a link to a story about police doing exactly that.)

> And I'm sure someone will post a link to a story about police doing exactly that.

I'm pretty sure it's been done, yes (though I don't have a case that I can cite). What's more interesting to me, though, is that it's not done all the time.

Why isn't it? I suspect because the courts take a dim view of this kind of stunt (again, I don't have a case to cite). But in the current climate, if this would pass muster with the courts, wouldn't the police do it frequently? Frequently enough that we'd hear about it somewhat regularly?

Like many things in the law it comes down to intent. If the electrician is acting on their own initiative it is legal. If the electrician is acting because they were induced by the government then they are a government agent and the search is illegal.

Reply on news.ycombinator.com