The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Post's Tom Jackman has an interesting story about a criminal case pending in Los Angeles before U.S. District Judge Cormac J. Carney:
At a giant Best Buy repair shop in Brooks, Ky., Geek Squad technicians work on computers owned by people across the country, delving into them to retrieve lost data. Over several years, a handful of those workers have notified the FBI when they see signs of child pornography, earning payments from the agency.
The existence of the small cadre of informants within one of the country's most popular computer repair services was revealed in the case of a California doctor who is facing federal charges after his hard drive was flagged by a technician. The doctor's lawyers found that the FBI had cultivated eight "confidential human sources" in the Geek Squad over a four-year period, according to a judge's order in the case, with all of them receiving some payment.
The case raises issues about privacy and the government use of informants. If a customer turns over their computer for repair, do they forfeit their expectation of privacy, and their Fourth Amendment protection from unreasonable searches? And if an informant is paid, does it compromise their credibility or effectively convert them into an agent of the government?
Best Buy searching a computer is legal – the customer authorized it, and the law does not prohibit private searches. But if Best Buy serves as an arm of the government, then a warrant or specific consent is needed.
This isn't a new issue. There have been cases on computer repairmen turning over computers with child pornography going back at least as far as the 1990s. See, e.g., United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998). Among those early cases is United States v. Barth, 26 F. Supp.2d 929 (W.D. Tex. 1998), in which the computer repair technician was also a confidential informant for the FBI.
Here's the basics of how the law applies. First, if the computer repairman is not deemed a government agent, then the repairman is permitted to turn over the computer to the government. The government can then reconstruct the search of the private-party repairman and use that to get a warrant. There's currently a 2-2 circuit split on what it means to "reconstruct" the search without a warrant, as I explained in detail here. Two circuits (the 5th and 7th) say that the government can search the entire computer without a warrant based on the repairman's private search. On the other hand, two circuits (the 6th and 11th) say that the government can look only at the files that the private party observed. The new case is in the 9th Circuit, which hasn't yet taken a side on the split.
I know of one opinion arguing that a private computer repairman also has independent authority to consent to a government search of a computer, which would mean that the repairman can authorize any government search he likes. See United States v. Anderson, 2007 WL 1121319 (N.D.Ind. 2007). The reasoning of that opinion strikes me as quite weak, though, for reasons I won't bore you with here.
There is less precedent on how the law applies if the computer repairman is considered a government agent, either at the outset or over the course of handing over that particular computer to the government. I think the issue becomes the scope of the computer owner's consent under Florida v. Jimeno, 500 U.S. 248 (1991). Under Jimeno, the question is: How would a typical reasonable person familiar with the exchange between the agent and the computer owner understand the scope of consent? Jimeno ordinarily applies when the suspect knows he is consenting to a government search, but at least off the top of my head I would think it also applies to a search when the agent is effectively undercover.
According to the Post story, the government is arguing that the computer owner waived his Fourth Amendment rights because he signed a written form stating that "I am on notice that any product containing child pornography will be turned over to the authorities." I'm skeptical about that argument. I don't know the full context, but that language in isolation strikes me as most naturally read as notice that any discovered images would be turned over, not as an understanding that the computer repair technicians would search everywhere on the hard drive to discover such images. Scope of consent issues are always fact-bound, however, so it's hard to say much more on that.
Finally, you might be wondering, what's the line between a private-party search and a government agent search? There are no bright lines. And each circuit has its own formulation. In the 9th Circuit, where this case is being litigated, the case I know of best is United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982), Miller focused the agency inquiry on "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends."
The fact-intensive nature of the Miller test may help explain why the judge is planning a factual hearing on the details of the relationship between the government and the repair technicians. In computer cases in particular, the line between a private-party search and a government agent search can be really hard to draw and can depend on pretty fine factual distinctions. See, e.g., United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003) (exploring the specifics of the relationship between an unidentified hacker and the government in deciding whether the hacker had become a government agent). As always, stay tuned.