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March 10, 2017

Are Online Porn Watchers In Danger From ... Geek Squad?

CYBERSPACE—Once upon a time, a long, long time ago, way back in the mid-1990s (likely before most many of you reading this were born), there was an adult producer by the name of Bob Best, who not only owned Bon Vue Video, which specialized in BDSM material, but was also a commercial film processor (remember film?), and people used to send him their film to be developed. One photographer, however, sent Best a roll or two of film, the details of which are lost to history, but they contained child pornography of some sort. Now, Best, being a good citizen, as soon as he'd developed the rolls, got on the phone to the FBI and reported the film's owner as a child pornographer. The feds investigated, the guy got busted ... and the FBI, as was their custom, sent Best a check for, if memory serves, about $5,000—and Best, still being a good citizen, donated the full amount to (if memory serves again) Free Speech Coalition, which was then in its infancy and could use the influx of cash. Back in those days, state legislatures were still catching up on what to do about child porn, but at this point, most states have laws like California's, which requires "Any commercial film, photographic print, or image processor who has knowledge of or observes, within the scope of his or her professional capacity or employment, any film, photograph, videotape, negative, slide, or any representation of information, data, or an image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disk, data storage medium, CD-ROM, computer-generated equipment, or computer-generated image depicting a child under 16 years of age engaged in an act of sexual conduct, shall immediately, or as soon as practically possible, telephonically report the instance of suspected abuse to the law enforcement agency located in the county in which the images are seen. Within 36 hours of receiving the information concerning the incident, the reporter shall prepare and send, fax, or electronically transmit a written followup report of the incident with a copy of the image or material attached." Short version: "If you see something child porn-y, say something." That's Sec. 11166 of the California Penal Code—and if you see it and don't report it, that's a misdemeanor, punishable by as much as six months in jail and/or a $1,000 fine. As one might expect, that same legal requirement holds true for child porn images discovered on a computer: "Any commercial computer technician who has knowledge of or observes, within the scope of his or her professional capacity or employment, any representation of information, data, or an image, including, but not limited, to any computer hardware, computer software, computer file, computer floppy disk, data storage medium, CD-ROM, computer-generated equipment, or computer-generated image that is retrievable in perceivable form and that is intentionally saved, transmitted, or organized on an electronic medium, depicting a child under 16 years of age engaged in an act of sexual conduct, shall immediately, or as soon as practicably possible," report it. But here's the thing: Most people, if they have a computer problem, rarely go to their "commercial computer technician" and say, "My computer's not booting up," or "My screen freezes when I use Photoshop/Word/Firefox/whatever—so while you're in there fixing that problem, why don't you have a look around my hard drive and see if there's anything else that interests you?" Of course, the fact that you don't make the offer doesn't mean the tech won't open a bunch of your files to see what you've got—but if the exposé by investigative reporter R. Scott Moxley recently published in the OC Weekly is to be believed, at least one commercial computer tech firm, Best Buy-owned Geek Squad, could be checking out your data without a warrant under an agreement with the FBI—and that's illegal. "Recently unsealed records reveal a much more extensive secret relationship than previously known between the FBI and Best Buy's Geek Squad, including evidence the agency trained company technicians on law-enforcement operational tactics, shared lists of targeted citizens and, to covertly increase surveillance of the public, encouraged searches of computers even when unrelated to a customer's request for repairs," Moxley's article begins. "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." One might be tempted to say, "Hey, they're child porn watchers; if they're stupid enough to save their material on their computers, they deserve to be busted"—but the problem is, a fairly large number of adult video performers are young—18, 19, 20—and even more simply look young, and it's not as if Geek Squad's repair people are given any training in how to tell the difference between a 17-year-old and an 18-year-old having sex on camera. So the question becomes, how many Geek Squad customers can expect a visit from the FBI anytime soon? And apparently, the problem begins at the top. A summary of an FBI memorandum filed in connection with U.S. v. Rettenmaier, a child porn possession case in Orange County, stated, regarding Geek Squad supervisor Justin Meade, "Agent assignments have been reviewed and are appropriate for operation of this source," that the paid informant [Meade] "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." According to Moxley, "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.'" Moxley goes on to discuss Rettenmaier's case, noting that the defendant, a surgeon, "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." Trouble is, the supposed "illicit image" doesn't show the child's genitals and doesn't show her engaged in any sexual activity—and moreover, investigation by Rettenmaier's attorney, James D. Riddet, revealed that "Geek Squad informants had found the image in unallocated space [on the computer], which is only accessible via highly specialized computer-intrusion tools the doctor didn't possess"—meaning that the image may have accidentally been downloaded without the defendant's knowledge—and that the FBI knew about this and never informed the judge in the case. Riddet is currently working on getting that evidence suppressed. The lesson for adults who watch porn on their computers? Watch your ass—and think about using a different repair service than Geek Squad. Any commercial computer technician who has knowledge of or observes, within the scope of his or her professional capacity or employment, any representation of information, data, or an image, including, but not limited, to any computer hardware, computer software, computer file, computer floppy disk, data storage medium, CD-ROM, computer-generated equipment, or computer-generated image that is retrievable in perceivable form and that is intentionally saved, transmitted, or organized on an electronic medium, depicting a child under 16 years of age engaged in an act of sexual conduct, shall immediately, or as soon as practicably possible, - See more at: http://codes.findlaw.com/ca/penal-code/pen-sect-11166.html#sthash.5o5zMDpb.dpuf

 
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