By Jessica Rubery
Everyone has faced their computer needing repairs or contracting viruses if you do not own an Apple computer, or even if you do, you may seek help from Best Buy’s Geek Squad. Those of us who do not engage in illegal activity with out computers would not think twice about Geek Squad employees working on our computers. However, a recent case out of California has raised the issue of Geek Squad members receiving compensation from law enforcement for turning over child pornography. The employee accepted payment from an FBI agent for turning over child pornography the employee found. This poses a grave issue for the prosecution for several reasons.
Best Buy’s policy dictates that Geek Squad members are required to turn over any illegal material found on computers they repair, and does not permit employees to receive compensation for turning over the evidence. Such a policy is not out of the norm especially in the realm of child pornography, but the issue turns to a Fourth Amendment problem when law enforcement decides to pay the finder. The problem arises because the Geek Squad worker could be considered a state actor under the Fourth Amendment if they are being directed by police to look for certain things.
If they are deemed a state actor the search, even though it was found in the course of repairs, it could be deemed in violation of the Fourth Amendment. From there, the evidence could be excluded during trial. The potential for at least the Geek Squad worker in question to be deemed a state actor was further solidified when emails between the employee and the FBI were admitted into evidence. The emails showed that this relationship was more than simply the employee saying “I found child porn and I am turning it over.” Further evidence showed that the location of the file in the California case was in an area that is not easily accessed and requires special software to find. Of course, it is possible that Geek Squad employees could and do discover this kind of evidence all the time and are required to turn it over. However, the relationship between the employee in this case and the FBI appears to be more.
If the Geek Squad worker is not deemed a state actor, the evidence would not be considered illegally seized. Had the Geek Squad employee followed company policy and not taken the money, this issue might not have arisen. Unfortunately, because the employee did accept payment on various occasions from the FBI, in this case, the Fourth Amendment issue arises.
On the other hand, when customers submit their computers for repair to Geek Squad, they do sign forms putting them on notice that any child pornography found will be turned over to authorities. Such notice arguably could mean that the citizen consented to the search. Further, a judge could find that even if the Geek Squad employee was a state actor, anything they found was in plain view because of the repair work being done. Thus, there may be an exception even if they’re found to be state actors. Ultimately, it is unclear whether the Geek Squad employee will be deemed a state actor and whether their search deemed unconstitutional, but there does appear to be a triable issue.
Student Bio: Jessica is a Lead Blog Editor on the Journal of High Technology Law. She is currently a 3L at Suffolk Law. She possesses a B.S. in Legal Studies and Foreign Language from Roger Williams University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
