LOUISVILLE, Ky. (WHAS11) - Agents with Louisville's FBI field office made several payments to employees of Best Buy's Geek Squad for several years after those employees had previously alerted federal investigators about finding evidence of child pornography on customers' computers, an agent testified in a Jefferson County court last fall.
The agent testified during an October 5 evidence suppression hearing in the child pornography case against Rodger Hogg. He is charged with 20 counts of possessing child pornography.
"This case has opened my eyes about the relationship between the FBI and Geek Squad and Best Buy," defense attorney Thomas Clay said. Clay represents Hogg and had the opportunity to question the agent about the payments.
The agent told Clay FBI agents paid four Geek Squad employees in 9 years, but said the payments were not in exchange for the employees conducting searches on behalf of the agency.
WHAS 11 News is not identifying the agent because the person is still active within the bureau.
"They aren't looking for child pornography, they stumble across it," the agent told Clay.
Prosecutors tried unsuccessfully to stop Clay's line of questioning because no payments were alleged to have been made in Hogg's case.
Clay pressed the agent on whether the payments essentially made the Geek Squad staffers who provided information employees of or informants for the FBI.
"They weren't really informants -- I don't know what you would call them," the agent told Clay, "It didn't matter if they were paid or not, they still continued to call us."
Best Buy has previously said in published reports it is standard practice and a legal responsibility for Geek Squad employees to alert authorities to the discovery of potentially illegal material on a customer's computer.
The issue critics raise is the presence of money into the equation. Those critics argue, if the Geek Squad employees are being paid in exchange for information, it would make them an arm of the government, thus making their searches of property without warrants a violation of a customer's 4th amendment rights.
"It raises real constitutional issues about whether any search or a seizure of these hard drives is lawful," Clay said.
During the hearing, the agent stressed the payments were not in exchange for information, rather the bureau had additional money it wanted to give to the Geek Squad employees in a show of gratitude.
"They weren't paid for any particular case, they were just given money because we could," the agent testified.
"Really?," Clay asked, "The FBI doesn't work that way, they account for every dime they pay to an informant or confidential human source, whatever you want to call it. Whenever the FBI pays money for information they document it."
The agent also testified the practice of making payments to Geek Squad employees no longer happens.
A spokesperson for the FBI Louisville Field Office referred questions to the bureau's national press office. A spokesperson in that office declined comment, citing pending litigation.
During an interview, Clay referenced recent published reports by the civil liberties website Electronic Frontier Founadation. Winning a freedom of information lawsuit in federal court, EFF obtained internal FBI records which detailed the relationship between the FBI and the Geek Squad.
One FBI document the EFF received, which was dated September 9, 2008, said the Louisville Division's Cyber Working Group held a meeting at Geek Squad's repair facility in Brooks, Kentucky just north of Shepherdsville in Bullitt County.
"The Louisville Division has maintained closed liaison with the Geek Squad's management in an effort to glean case initiations and to support the division's Computer Intrusion and Cyber Crime Program," an FBI synopsis of the meeting read.
The EFF also published a 2011 FBI payment request form which appears to have been completed by the agent who testified in the Jefferson County case. The request is for payment is for a "CHS Expense." CHS is an abbreviation for confidential human source. A supervisor and Assistant Special Agent in Charge approved and certified the $500 payment.
"This is not something that just happened, It was known throughout the chain of command within the FBI of the Louisville office," Clay said, "That implies, to me, this was more than an occasional happenstance, this was something that was ongoing and there was a pattern involved."
WHAS 11 News has not independently obtained or verified the documents published by EFF.
In an emailed statement, a Best Buy spokesperson said the Geek Squad employees should have not accepted the payments.
"Any decision to accept payment was in very poor judgment and inconsistent with our training and policies," a portion of the statement from Paula Baldwin read.
Baldwin said four employees received payments but three of them no longer work for the company. She said a fourth was reprimanded and reassigned.
In the Hogg case, Clay argues his client may not have been aware the evidence was on his computer if the evidence was stored in unallocated space. Clay said a Geek Squad employee would have to specifically search that space and would not stumble upon it as suggested by the agent.
"That person, unless there's proof beyond a reasonable doubt that he knows these images are on there, a conviction is unlikely," Clay said.
The judge in the case has not ruled on Clay's motion to suppress evidence.
FULL BEST BUY STATEMENT
As we said more than a year ago, our Geek Squad repair employees discover what appears to be child pornography on customers’ computers nearly 100 times a year. Our employees do not search for this material; they inadvertently discover it when attempting to confirm we have recovered lost customer data. We have a moral and, in more than 20 states, a legal obligation to report these findings to law enforcement. We share this policy with our customers in writing before we begin any repair. As a company, we have not sought or received training from law enforcement in how to search for child pornography. Our policies prohibit employees from doing anything other than what is necessary to solve the customer’s problem. In the wake of these allegations, we have redoubled our efforts to train employees on what to do — and not do — in these circumstances. We have learned that four employees may have received payment after turning over alleged child pornography to the FBI. Any decision to accept payment was in very poor judgement and inconsistent with our training and policies. Three of these employees are no longer with the company and the fourth has been reprimanded and reassigned.