How Legal Are Searches by “Geek Squad” FBI Informants?

The Washington Post article “If a Best Buy technician is a paid FBI informant, are his computer searches legal?” has refreshed questions about the legality of paid third-party computer searches on the FBI’s behalf. A computer search conducted by a Best Buy Geek Squad employee factored into a recent criminal case against a doctor who had taken his computer in for repairs.

The FBI and Best Buy have a long-standing relationship where Best Buy Geek Squad employees notify the FBI when they detect illegal material (like child pornography) on customer computers being repaired. Critics say these searches violate the Fourth Amendment because they make Best Buy an agent of the government. The case also raises privacy concerns, as well as questions about the legality of using paid government informants.

Best Buy maintains that its Geek Squad does not set out to find child pornography on customers’ computers and that it does not encourage its employees to take government pay-outs for their findings. It merely notifies the FBI when such images are discovered in the course of fixing a customer’s problem.

But the doctor’s defense attorney has pointed out that the search which recovered an image on his client’s computer was able to find previously deleted files located in a place on the machine only accessible by special forensic software. Can such deleted information really be discovered by a Geek Squad employee whose only objective is to fix a customer’s computer?

This case reminds me of one I defended in Mountlake Terrace, Washington years ago. My client, too, had taken his computer to a shop for repair, and the repairman notified the Mountlake Terrace Police that it contained child pornography. I was able to persuade a Snohomish Co. Superior Court judge that the images were discovered in an illegal search, and the case was dismissed.