FBI's Use of Paid Best Buy Informants Goes Deeper Than We Knew
gizmodo.com
gizmodo.com
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.
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.
Could you bring a civil suit against the informant? Has anyone?
And in the case of Best Buy, they're not acting illegally in the situations described in the article.
Something many do not consider especially in today's era of social media and AI capable of scraping any tidbit of information you reveal about yourself. As an example, this [1] is an extremely primitive tool that generates a profile of Reddit users based on nothing but what they've publicly submitted. The profiles the companies people 'trust' with their information today are going to be orders of magnitude more detailed, and accurate.
[1] - https://snoopsnoo.com/
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?
Since this isn't possible for anyone not in the car when it's locked, it's not really "in public view".
it's a stretch to call signing a multi page document that you don't have time to read "explicit consent".
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.
> drivers are also asked to check a box if they wish to have their name and address "withheld from the list the department sells."
> About 2.5 million Wisconsin drivers didn't check the box to withhold their information. By not doing so, those drivers allow the DOT to sell their information on a monthly basis.
> [...]
> In 2010, the DOT made $22,250 selling driver record files.
Wisconsin sells the personal information of 2.5M drivers for a mere $22k. If that emissions information is not reported to insurance companies, I'll eat my hat.
The DOT made $22,250 for all sales during 2010, which corresponds to 89 sales.
(It's nice not having a car anymore.)
A tire change place changes tires, and likely brakes.
A mechanic shop isn't so specialized.
It's like the difference between a 7-11/corner shop and a full-size grocery store. Or between your local clinic and a hospital.
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???
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
The last case is most relevant to this topic. All the other ones are about people trying to steal company info.
And googling your name always brings up articles about the charges on the first page. Exonerations rarely get the same attention or media coverage as accusations, if they even get any.
TL;DR Your life is pretty much ruined forever.
https://www.computerworld.com/article/2529338/networking/how...
https://www.wired.com/2008/11/proof-porn-pop/
https://web.archive.org/web/20110716163331/http://www.sunbel...
that shows how a "random" accusation can severely de-stabilize someone's life.
...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...
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.
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.
So, like a violent (e.g. decapitation video) that nevertheless plays on all major outlets?
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?
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...
A driver that supposedly doesnt know how marihuana smells (how do you prove he does or does not) drives across the state moving tons of contraband so long as he does not posses a key to the truck's locker.
a) they make a statement under oath to the effect that they have no knowledge
b) they and their immediate family / propuesta they live with have no relevant convictions or charges that would contradict the above, and no known links to anyone who clearly does (no electronic communications collect as evidence)
c) they are otherwise a just, upright, and moral citizen
If there is no evidence* that the person knows what marijuana smells like, then their knowledge of what it smells like cannot be proved, so there is no issue of fact for a jury to consider, and the case should be dismissed.
* - 'evidence' is a very low bar to meet. It can be something as benign as a conversation about herbal remedies. Once there is some sort of 'evidence' -- it can go to trial and is up to the jury (the trier of fact) to determine if indeed that conversation about herbal remedies proves the defendant knows what marijuana smells like.
One thing I found interesting is that nearly every type of charge has a set of jury instructions that tell the jury exactly what they must decide. They are quite enlightening. FL Jury instructions for most drug offenses:
http://www.floridasupremecourt.org/jury_instructions/instruc...
Specifically possession(RTF) http://www.floridasupremecourt.org/jury_instructions/chapter...
There were two similar cases, one in which the box truck had a pass-through into the cabin, and based on this, the conviction was upheld because it was deemed that the pass-through from the passenger compartment of the vehicle into the cargo compartment allowed the defendants knowledge and control.
In the other case, there was no pass through and the conviction was overturned.
I will dig through some more files tomorrow. They were both State of Florida cases.
Another interesting(older) case was one in which a defendant was seen leaving an unoccupied house, was 'stopped and frisked' and a Tylenol(or some other legal OTC drug) bottle containing some sort of illegal drug(MDMA or something like that) was found in his actual possession(on his body). The defendant told the police that he had taken the bottle from the house and was unaware it contained illegal drugs. The conviction was overturned because while he knew of the presence of the pills in the bottle and could clearly exercise dominion and control as it was in his actual possession, there was no evidence to indicate he had knowledge of the illicit nature of the substance.
Of course, proving that you are an idiot is always a great start to a trial, but it's worked in the past.
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.
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.
Unless you go out of your way to do otherwise, when you delete a file, the data isn't actually purged from the bulk data storage area. The references to the data in the index are just deleted or marked as deleted. For all intents and purposes, the file was deleted, but the data is still on the drive, in "unallocated space." Every time data is written to the drive, there's a chance that some of the "deleted" file will get overwritten, but until it is, the file data is on the drive.
If you accidentally deleted all the data off of a drive in this manner (such as with a quick format, which just wipes the index and writes a new one) you could still recover a good amount of the data. Fragmented data would be nigh impossible to automatically recover after a quick format since the data isn't contiguous and the mapping was nuked when the index was wiped, though if you had known data patterns to search for (such as a few 512 byte chunks of illicit data) then you could trivially flag a drive for deeper forensic inspection. For small or unfragmented files, you can recover them in full.
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.
"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.
Don't know much about forensics and maybe this already happens, but is surely a good way for both sides to avoid unfounded accusations.
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.
is this true? is there a legal obligation?
>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.
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
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?
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.
https://www.opposingviews.com/i/porn-star-saves-man-from-inc...
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.
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