(KMSP) - A California child pornography case is raising an interesting question about the law: what is the difference between the government searching a computer and a business employee searching it — when the employee is also a paid, government informant? The answer affects whether police needed a warrant.
The facts are simple: a California man brought his computer to a Best Buy because it wouldn’t boot. Geek Squad told him his computer needed data recovery services. He agreed, and the computer was sent to a facility in Kentucky where a technician discovered possible child pornography, and reported it to his supervisor. The supervisor told the FBI. The customer was eventually arrested and indicted.
However, it turns out the supervisor who reported the images to the FBI was also a paid FBI informant, once receiving $500. The customer’s attorneys argue the discovery of the images was really an illegal search by the government, meaning the evidence should be tossed out.
The Fourth Amendment protects citizens from “unreasonable searches” by the government. Normally, the government satisfies this amendment by getting a warrant for the search. In this Best Buy case, there was no warrant.
“This conduct transgressed the line between a private person search, and one undertaken by a private person for the benefit of law enforcement,” the customer’s attorneys write in a legal brief. “[T]he Best Buy source was an agent of law enforcement, and his actions (undertaken without a search warrant) are subject to the rigors of the Fourth Amendment.”
However, in an sworn affidavit, the Best Buy supervisor writes the discovery had nothing to do with his relationship with the FBI.
“I was motivated by my duty as an employee to act in accordance with Best But policy. I was not motivated by an independent desire on my part to assist law enforcement,” he testified.
A spokesman for Best Buy tells Fox 9 the company policy forbids employees from intentionally searching for child pornography on customers’ devices. However, if an employee unintentionally finds child pornography, then the company does report the images to law enforcement.
"Best Buy and Geek Squad have no relationship with the FBI. From time to time, our repair agents discover material that may be child pornography and we have a legal and moral obligation to turn that material over to law enforcement,” wrote Jeff Shelman, spokesman for Best Buy. “Any circumstances in which an employee received payment from the FBI is the result of extremely poor individual judgment, is not something we tolerate and is certainly not a part of our normal business behavior.”
“The question here is whether the FBI was acting as an agent of the federal government,” Brad Colbert, a professor at Mitchell Hamline School of Law, told Fox 9. “It’s an important case, because what’s coming up more and more is we’re giving so much information to third parties.”
The FBI has had eight informants at the Kentucky facility.