How’s this for a nightmare scenario? And while it didn’t actually occur on Valentine’s Day – it could have.
One morning, you switch on your personal computer. Only, it won’t boot up. So you lug it out to your car and take it to a local Best Buy for their Geek Squad subsidiary to repair.
A few weeks later, you’re driving home from work. As you pull into your driveway, you notice the front door is open with men carrying boxes out of your home. When you open your car door, one of the men approaches you and identifies himself as an agent for the FBI. He tells you that your home is being searched pursuant to a federal search warrant.
Next, he asks you if you are carrying a phone. You acknowledge that you are.
“We’ll need that too,” he tells you.
You hand it over to him.
As the agents leave, they give you an inventory of what they’ve taken. It includes your laptop, multiple hard drives, and your iPhone.
For the next two years, your life is in limbo as you wonder if you’ll be charged with any crime. The FBI finally returns with an arrest warrant. You’re taken into custody and charged with two felony counts of possession of child pornography.
In case you’re wondering, this scenario is based on a true story involving a man named Dr. Mark Albert Rettenmaier. He’s a California physician who practiced medicine until he was indicted in 2014 for possession of child pornography. The attorney defending him has uncovered chilling evidence that Best Buy’s Geek Squad technicians have, for at least the last decade, acted as paid informants for the FBI.
It appears that Best Buy’s Geek Squad maintenance center routinely inspects the dysfunctional computers for information it can sell to the FBI. If the FBI wants the information, the technician that found it gets a $500 payment. The practice has been ongoing since 2007 or perhaps longer.
In Dr. Rettenmaier’s case, the technician conducting a routine search of his files evidently found nothing incriminating. The technician then inspected the doctor’s hard drive using a so-called “carving” program. This is a sophisticated computer forensic tool that can recover not-quite-deleted files found on a hard drive’s unallocated disk space; disk space that is not being used by the computer. The files aren’t visible to the user and can even be secretly implanted by malicious software that loads itself on a PC.
The carving program hit paydirt. The technician found an image of a naked prepubescent female in the unallocated space. He reported his discovery to his boss, who in turn alerted another colleague and subsequently the FBI. All three Geek Squad employees were FBI informants.
Based on the discovery, the FBI applied for and received a warrant to search Dr. Rettenmaier’s home and seize any electronic devices capable of storing images.
Unfortunately for Dr. Rettenmaier, these devices revealed hundreds of images of naked or partially nude girls. That discovery led directly to his indictment.
To convict a defendant on child pornography charges, prosecutors must prove beyond a reasonable doubt that a person knowingly possessed the image or images. It seems unquestionable that Dr. Rettenmaier did indeed knowingly download pornographic images onto his iPhone and laptop.
But it’s not exactly an open-and-shut case for the feds. A concern is how the original search warrant was issued. It appears likely that in applying for the search warrant, prosecutors neglected to inform the judge that the photo found by the Best Buy technician was in unallocated space. Nor did they reveal the technician had used a carving software to recover it.
It turns out that in 2011, a federal appeals court ruled that incriminating pictures found in a hard drive’s unallocated space don’t meet the burden of proof for knowing possession of child pornography. The reason: It’s impossible to prove when, why, or who downloaded them to the hard drive.
I’ll be the first person to acknowledge that Dr. Rettenmaier is not a sympathetic defendant. If his case ever gets to a jury, he could face a prison sentence of up to 10 years. Federal sentencing guidelines allow judges to impose even longer sentences under various scenarios, including if the defendant used a computer to receive or possess child pornography. In many cases, child porn defendants face longer prison sentences than individuals who sexually molest children.
Still, the case of Dr. Rettenmaier provides two important lessons to anyone living in the US:
Any webpage you visit could be maliciously implanting child pornography or other compromising material on your PC or smartphone.
Any service you use to repair your PC or smartphone can secretly conduct a forensic search of your hard drive and turn over any compromising material to the FBI.
In Communist East Germany, between 4% and 14% of the population acted as informants for the Stasi, the Ministry for State Security. Stasi archives reported that informants “are at the very core of the [Ministry’s] politically operative work.”
Words to keep in mind as you’re pondering life in the “Land of the Free.”