Court: Porn found in unallocated space cannot be proved to be “possessed” by the computer’s owner without other evidence.

You have no right to privacy in your computer if you turn it over to Best Buy, Geek Squad, or any other computer repairman. As this article shows,

The case against oncologist Mark Rettenmaier attracted national attention because it revealed that technicians at the Geek Squad’s central repair facility in Kentucky had been paid by the FBI and would tip off the FBI field office in Louisville when they spotted possible child pornography on computers. Computers taken to Best Buy stores around the country for repair are all shipped to the Kentucky facility.

The case also revealed that the repairmen were financially incentivized to look for illegal material.

But Rettenmaier’s attorney, James D. Riddet, discovered that the FBI made payments to some of the technicians who tipped them off to pornography, often about $500, and considered them “confidential human sources” in internal records.

But what was found by GeekSquad repairmen was not even illegal per se, but it still lead to criminal prosecution:

On Rettenmaier’s computer, a technician found one photo of a naked girl, believed to be 9 years old, in the “unallocated space” on Rettenmaier’s hard drive. It did not show the girl’s genitalia or any sex act. Unallocated space is where deleted data resides on a computer until it is overwritten by other data. But it often does not have metadata, such as when it was created, accessed or deleted, and because it lacks that information, courts have ruled that photos found in unallocated space cannot be proved to be “possessed” by the computer’s owner without other evidence.

Nevertheless, the FBI used this on photo as basis to obtain a search warrant for every other devise in Rettenmaier’s possession and house. The case ultimately dismissed because the search warrant failed to explain the basis of the warrant.

The judge noted that Kayle also failed to state that the image was found in the unallocated space of Rettenmaier’s computer and that three separate searches of the hard drive were done to find the image. “This one image of child erotica,” Carney said, “is simply not sufficient to search Dr. Rettenmaier’s entire home, the place where the protective force of the Fourth Amendment is the most powerful.”

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