Immunizing Tipsters

​EVERYDAY CITIZENS have proved integral to stopping potential terror attacks in the United States. It was an electronics store employee who tipped off law enforcement about suspicions that led to individuals behind the 2007 Fort Dix attack plot. Sidewalk vendors alerted authorities about the suspicious vehicle that held a car bomb in Times Square in 2010. Other examples abound. Now some members of Congress would like to further encourage suspicious activity reporting by ensuring that people making good faith tips are not liable to be sued if they finger the wrong person.

The provision, which is part of the See Something, Say Something bill, (H.R. 963) that was voted out of the House of Representatives Judiciary Committee in the summer, would do for general suspicious activity reporting what the Implementing Recommendations of the 9/11 Commission Act of 2007 did for reporting on passenger transportation a few years ago. The immunity from civil lawsuit portion of that act coincided with a lawsuit brought by the so-called “flying imams,” a group of six Muslim imams who were removed from a US Airways flight in 2006 after other passengers were alarmed by what they perceived to be “suspicious behavior.” The imams sued not only US Airways but also the passengers who reported them as being suspicious. Though the imams did drop the lawsuit against the passengers, the airline ended up settling.

Under the proposed legislation, law enforcement personnel and the legal system will continue to have the responsibility for deciphering whether a tip has been made in good faith. According to the language in the bill, the protection “shall not apply to any report that the person knew to be false or was made with reckless disregard for the truth at the time that the person made the report.”

Responding to a query on the topic, Rep. Pete King (RNY) explained in an e-mail to Security Management why he supports the legislation: “As shown by the foiled plot against Fort Dix, regular citizens are essential for combating terrorism. But we will never know how many more people could have come forward to report suspicious activity, but were afraid of getting involved.”

Not everyone supports public reporting. Speaking at a recent House Judiciary Committee hearing on See Something, Say Something, Salt Lake City Chief of Police Chris Burbank expressed concern about the implementation of the act. He said that normal citizens don’t have the training in what constitutes suspicious behavior that law enforcement officers have.

He also expressed concerns about proper vetting when tips do come in. “Do we have the checks and balances in place to ensure that we’re not just taking information and saying, ‘yeah, that’s valid information’ and then going forward with it?” Burbank asked. Others have said that the bill encourages spying on fellow citizens.

Alejandro Beutel is the government liaison for the Muslim Public Affairs Council (MPAC), and he says his organization worked with the Los Angeles Police Department on its suspicious activity reporting
(SAR) program. Beutel said proper vetting should be part of SAR programs. “Otherwise, what ends up happening is that you’re loading up the databases with junk, and you’re having law enforcement officials chasing down things that have nothing to do with any sort of terrorist criminal activity,” he said.

Beutel stresses that it’s important to have the opportunity for redress for those who are wrongfully accused. However, that redress may become more difficult if the new law passes. It states that “any authorized official or other person found to be immune from civil liability under this section shall be entitled to recover from the plaintiff all reasonable costs and attorney fees.”

That could discourage challenges because plaintiffs will fear getting hit with large bills if they can’t win their cases. Rep. Robert C. “Bobby” Scott (D-VA) expressed the view at the hearing that current law seems adequate, stating “the fact is that no one has ever been found liable who made a good faith [tip] based on objectively reasonable suspicion.” He asked, “In a good faith lawsuit, why should plaintiffs have to bet their house in order to win the case?”