To fight back against this tyrannical federal overreach, the EFF has filed a Freedom of Information Act lawsuit against the FBI. The organization is seeking to obtain records that would illustrate to what lengths the FBI goes to direct and train Geek Squad employees to engage in searches of people's devices sans-warrant. One of the key issues EFF hopes to gain a better understanding of is at what point does a Geek Squad member's search turn into a warrantless government search -- which would be a blatant violation of the Fourth Amendment.
Private searches do not count as a violation of the Fourth Amendment, unless a government agent instructed someone to do so. One would think the fact that several Geek Squad employees have been paid anywhere from $500 to $1,000 for their finds would be enough to denote the FBI's involvement with the searches, but the legal aspects of this are murky at best as laws regarding illegal searches have not kept pace with technological innovations.
The case of Dr. Mark Rettenmaier is a perfect example of this. As EFF explains," [T]he FBI was apparently directing Geek Squad workers to conduct fishing expeditions on people’s devices to find evidence of criminal activity. Prosecutors would later argue, as they did in Rettenmaier’s case, that because private Geek Squad personnel conducted the searches, there was no Fourth Amendment violation." Since the Rettenmaier case, suspicions of an unsavory relationship between the FBI and the Geek Squad have been running high.
The judge from Rettenmaier's case recently ruled that because he had consented to a Geek Squad search of his device, both in writing and verbally, his Fourth Amendment rights had not been violated.
Yet, you might question whether or not previous instruction from the FBI still counts as conducting a search on their behalf -- and if that is the case, then there was indeed a violation. EFF writes, "[T]he court's ruling demonstrates that law enforcement agents are potentially exploiting legal ambiguity about when private searches become government action that appears intentionally designed to try to avoid the Fourth Amendment."
The organization goes on to explain that it appears the FBI is exploiting the fact that legally, there is a distinction between purely private searches and searches private citizens conduct at the behest of a government agent. But as EFF explains, there are two factors that help to make this determination:
The federal appeals court covering California and other western states has ruled that determining whether a party is a state or private actor comes down to two elements: (1) whether government officials knew of and agreed to the intrusive search and (2) whether the party conducting the search intended to assist law enforcement or further her own ends.
If we apply these stipulations to Geek Squad employees, it's obvious that they should be considered agents of the government, or at the very least, people acting on the government's behalf. The payments given to Geek Squad members by the FBI illustrate that these illegal searches were conducted to benefit the FBI -- and these payments also show that the FBI knew about the searchers and instructed the Geek Squad associates to perform them.
Geek Squad informants are conducting warrantless searches at the behest of the FBI; this is almost irrefutable at this point -- and it's shameful that the government thinks it can just bypass civil rights with a little loophole. Hopefully, the EFF's lawsuit will help to put a stop to this disgraceful and unconstitutional behavior.
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