Photo Credit: Mike Mozart/Flickr

On Friday, the U.S. Department of Justice is scheduled to file a motion for summary judgment in a case that could concern every general counsel, CEO or other corporate executive who has ever taken a personal computer to a technician to be repaired.

The issue behind the case is that most repair shops ask customers to sign repair contracts acknowledging that if a tech finds any evidence of something illegal on the computer, the tech can report it to authorities.

The bigger question is: Is it legal for the FBI to pay techs to look for evidence of misconduct on people's computers?

Yes, said a federal judge in California, in a case involving Richfield, Minnesota-based Best Buy Corp., the world's largest electronics retailer.

No, said Aaron Mackey, a staff attorney for the Electronic Frontier Foundation, which is suing the FBI over a Freedom of Information Act request seeking more information about such practices. EFF is a San Francisco-based nonprofit organization that defends civil liberties in the digital world.

In a statement, Best Buy spokesperson Jeff Shelman said four employees may have received payment after turning over alleged child pornography to the FBI.

“Any decision to accept payment was in very poor judgment and inconsistent with our training and policies,” he said. “Three of these employees are no longer with the company and the fourth has been reprimanded and reassigned.”

The case began over a year ago when a doctor in Southern California took his personal computer to Best Buy so its “Geek Squad” could fix the computer's faults. Best Buy sent the computer to its central repair facility near Louisville, Kentucky, where the techs found child porn on the device.

The techs called the local division of the FBI, and agents obtained a warrant and raided the doctor's home, finding more child porn. They charged the doctor. The case was dismissed last November due to problems with the warrant unrelated to the techs.

But not before U.S. District Judge Cormac Carney in the Central District of California said in his ruling that the doctor “cannot reasonably have expected that the child pornography on his hard drive would remain private through the data-recovery process he authorized. [The doctor's] only reasonable expectation was that once child pornography was found, Geek Squad City would turn around and show it to the FBI.”

Mackey told Corporate Counsel Thursday that the ruling is “problematic.” It's one thing to say there is no expectation of privacy if a technician stumbles across a pornographic photo while repairing the computer, Mackey said.

But it's quite another to say there is no expectation of privacy after a technician does a forensic search of a customer's computer specifically looking for evidence of illegality, he said, while accepting money from the FBI as a paid informant.

“The images were found in unallocated space on the hard drive,” Mackey said. “They would only have been found while doing a forensic search using software to scan the device and see what's on it. The contract doesn't say anything about doing that.”

What if the customer was a general counsel and the computer contained evidence of a possible overseas bribe? Or a CEO and it contained evidence of securities fraud?

“In theory [under the judge's ruling],” Mackey replied, “if they came across the other evidence and knew what they were seeing, they could report it.”

For its part, Best Buy's statement said, “Our Geek Squad repair employees discover what appears to be child pornography on customers' computers nearly 100 times a year. Our employees do not search for this material; they inadvertently discover it when attempting to confirm we have recovered lost customer data.”

It continued, “We have a moral and, in more than 20 states, a legal obligation to report these findings to law enforcement. We share this policy with our customers in writing before we begin any repair.”

But Mackey said, in a blog he wrote, that the FBI's use of techs to search customers' computers without a warrant threatens to circumvent computer owners' Fourth Amendment rights.

Documents show the relationship between the FBI and Best Buy techs had been going on for at least 10 years, Mackey said, and management knew about it.

He detailed other findings of his FOIA request in a recent interview with editor David Hechler of the Legal BlackBook.

Still Mackey said he and EFF want more information, such as whether the FBI had any similar relationships, trainings or guidance with other companies that repair computers. They also want information that was redacted from documents it received.

In its motion for summary judgment, the DOJ is likely to continue its argument that any other information EFF seeks is exempt from disclosure.

Depending on what the government argues, Mackey said his group will probably urge the court to order more disclosure in its cross motion for summary judgment, due by May 30.

Meanwhile Best Buy has taken other steps as well. Its statement said, “Our policies prohibit employees from doing anything other than what is necessary to solve the customer's problem. In the wake of these allegations, we have redoubled our efforts to train employees on what to do—and not do—in these circumstances.”