(CNN Newsource) – A California man is charged with having child pornography on his computer – but the way it was discovered is being challenged in court.
The man took his computer to a local Best Buy’s Geek Squad because it wouldn’t start. They sent the laptop to a facility in Louisville, Kentucky, where employees performed a data recovery operation. During that process, one employee told his supervisor he found child porn on the computer. His supervisor then informed the FBI.
According to court filings, several confidential sources there were paid by the FBI, for four years, to inform them of child porn discovered on computers.
So the question is, does that violate your Fourth Amendment right to privacy?
Steve Schardein has worked with computers his whole life. “A lot of times you feel like you’re the superhero solving all these problems for everybody, and it’s a lot of fun.”
He’s been to the so-called Geek Squad City in Brooks, Kentucky. “They have computers shipped in, they do the work and ship them back out to whatever satellite location they picked them up from. It’s a really cool idea for efficiency.”
Seeing private information is common with tech work, but being paid by the FBI to find child porn is new.
“I was a little bit surprised, I guess. At the same time, there’s a reasonable expectation that when you drop your computer off with somebody they have access to your stuff.”
Constitutional lawyer Jon Fleischaker says the search appears to violate the Fourth Amendment, protecting against an illegal search. “It’s not a technicality. It’s a constitutional right. It’s like saying if you’re guilty, I can do whatever to find out you’re guilty.”
The question is whether the images were searched for or just found, which is legal. “You have testimony about where was it and how did you see it.”
Schardein said if Best Buy was doing data recovery work, finding the pictures would be normal. “I mean, if you can see documents, you can see pictures. If you’re digging into it, when you’re just doing like a general tune-up or something, then there’s maybe another conversation to be had.”
As a general rule, he says to treat a computer technician like a doctor. “If you don’t know that you can trust the person who’s working on it, you shouldn’t be dropping it off with that person or that company. You should look for somebody you trust.”
Just assume they can see everything.
Another motion in the case gets even more technical. That legal argument is that the photo was in what’s known as unaccessed space. In other words, the FBI couldn’t prove the man actually looked at the images. It’s possible they were emailed to him as an innocent victim and never opened them.
The FBI, however, allegedly used them as cause for a search warrant of his home and computer to find additional evidence.
The motions are being argued in federal court Wednesday.