To sidestep the U.S. Constitution’s prohibition against warrantless invasions of private property, federal prosecutors and FBI officials have argued that Geek Squad employees accidentally find and report, for example, potential child pornography on customers’ computers without any prodding by the government. Assistant United States Attorney M. Anthony Brown last year labeled allegations of a hidden partnership as “wild speculation.” But more than a dozen summaries of FBI memoranda filed inside Orange County’s Ronald Reagan Federal Courthouse this month in USA v. Mark Rettenmaier contradict the official line.
One agency communication about Geek Squad supervisor Justin Meade noted, “Agent assignments have been reviewed and are appropriate for operation of this source,” that the paid informant “continues to provide valuable information on [child pornography] matters” and has “value due to his unique or potential access to FBI priority targets or intelligence responsive to FBI national and/or local collection.”
Other records show how Meade’s job gave him “excellent and frequent” access for “several years” to computers belonging to unwitting Best Buy customers, though agents considered him “underutilized” and wanted him “tasked” to search devices “on a more consistent basis.”
To enhance the Geek Squad role as a “tripwire” for the agency, another FBI record voiced the opinion that agents should “schedule regular meetings” with Meade “to ensure he is reporting.”
A Feb. 27, 2008, agency document memorialized plans “seeking the training of the Geek Squad Facility technicians designed to help them identify what type of files and/or images would necessitate a call to the FBI.”
Jeff Haydock, a Best Buy vice president, told OCWeekly in January there has been no arrangement with the FBI. “If we discover child pornography in the normal course of serving a computer, phone or tablet, we have an obligation to contact law enforcement,” he said, calling such policy “the right thing to do.”
But evidence demonstrates company employees routinely snooped for the agency, contemplated “writing a software program” specifically to aid the FBI in rifling through its customers’ computers without probable cause for any crime that had been committed, and were “under the direction and control of the FBI.”
Multiple agency memoranda underscore the coziness with Best Buy, including one that stated, “The Louisville Division has maintained [a] close liaison with the Greek Squad management in an effort to glean case initiations and to support the division’s Computer Intrusion and Cyber Crime programs.”
These latest revelations are the result of the work of James D. Riddet, the San Clemente-based defense attorney representing Rettenmaier. The doctor, who specializes in obstetrics and gynecology, is fighting allegations he knowingly possessed child pornography after the Geek Squad claimed it found an illicit image on a Hewlett Packard computer he left with the company for repair in 2011. U.S. Department of Justice officials filed criminal charges the following year. But the case has been in legal limbo while U.S. District Court Judge Cormac J. Carney considers Riddet’s contentions of outrageous government conduct.
In 2016, the defense lawyer claimed the FBI made Best Buy an unofficial wing of the agency by incentivizing Geek Squad employees to dig through customers’ computers, paying $500 each time they found evidence that could launch criminal cases.
There are also technical weaknesses in the agency’s pursuit of Rettenmaier. Just weeks before his arrest, federal judges ruled in a notable separate matter that child porn found on a computer’s unallocated space couldn’t be used to win a possession conviction because there is almost no way to learn who placed it there, who viewed it, or when or why it was deleted. Cynthia Kayle, a lead agent working against Rettenmaier, knew Geek Squad informants had found the image in unallocated space, which is only accessible via highly specialized computer-intrusion tools the doctor didn’t possess. Agents won a magistrate judge’s permission to advance the case by failing to advise him of those facts and falsified an official time line to hide warrantless searches, according to the defense lawyer. Brown disputes any law-enforcement wrongdoing.
But the government’s case took more blows in January. During a pretrial hearing with obnoxious FBI agents visibly angered that I’d alerted the public about their heavy-handed tactics, Riddet asked Carney to take his first look at the image found on his client’s device, pointing out the picture does not depict sex or show genitals. The lawyer then questioned agent Tracey L. Riley, who retreated from her original, case-launching stance that the image—known as “9yoJenny”—was definitely child pornography to “not exactly” child porn. Under questioning, experts for both the defense and the government testified that it’s not only possible for files from the internet to land on a computer without the owner’s knowledge, but that it also frequently happens.
Riddet wants Carney to suppress the evidence and dismiss the case. “The FBI’s internal documentation of its relationship with its informants and the correspondence between the FBI and its informants suggest a joint venture to ferret out child porn,” he told the judge on March 1. “Accordingly, Geek Squad City (GSC) is a government entity and its employees’ searches are warrantless government searches in violation of the Fourth Amendment. . . . There was a total of eight FBI informants in GSC’s data-recovery department at various times.”
Carney faces what could be a monumental ruling with nationwide implications. This Republican judge and former UCLA football player has been known to ridicule law-enforcement tactics when he considers them unethical. If he doesn’t accept Riddet’s stance and tolerates the government’s already documented abuses, a trial is tentatively scheduled to begin on June 6 in Santa Ana.