Tom Jackson has a shocking story on the front page of the Washington Post Tuesday, January 10, 2017, “If a Best Buy technician is a paid FBI informant, are his searches legal?”
The specific story concerns a medical professional who turned in his laptop to a Geek Squad Best Buy outlet in California. The customer wanted the data recovered and the old hard drive was sent to a facility in Kentucky. A technician found an image of a pre-pubescent female in an unallocated space on the hard drive. The article notes that a federal appeals court recently upheld “mens rea” in a case like this; you can’t prove that the customer put it there (it could have come from malware) if in an unallocated area. Nevertheless, the consumer was indicted in 2014 (after a long delay).
A typical Geek Squad repair order contains the language “I am on notice that any product containing child pornography will be turned over to the authorities.” I have seen this on my own orders.
There would be a question as to how a technician sees an illegal image unless he looks for them.
Most repairs would not cause a technician to have a legitimate reason to look at drive contents. (Compare this to photo shops when technicians develop pictures, which used to lead to some child pornographt prosecutions.) But it would sound plausible that the FBI could enter into an agreement with a business to conduct a sting operation against a customer for which there is some prior reasonable suspicion. Images viewable in thumbnails from Windows explorer would not normally be that easy to parse at casual, happenstance first sight.
There are good questions as to what could be viewed as c.p., and when authorities would move on a content item. Images might have come from overseas, and have been produced legally according to the laws of the originating country, but would have been illegal to make in the US (if the actor was under 18). There are vagaries in the law as to how explicit an image needs to be to inspire gratuitous pruient interest. It’s possible that an image (screenshot) from a film, of minor nudity legal in a medical context or war or extreme poverty overseas, could be captured and kept for prurient personal purposes, and be viewed as illegal, but I haven’t heard of this actually happening with a specific prosecution or indictment. Theoretically, legal problems could occur with a possession of an image from a video included in another website but not made public on its own.
Update: Jan 11
WJLA-7 reported the story tonight and says it is possible that the image could have been in an unopened email. But it probably would have needed to be in some kind of preview mode. I don't preview my emails automatically and mark many as spam and don't open a lot of them. But I have no idea what could be in unopened emails..