Reef Seekers & the FBI, part 1

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Posted by Reef Seekers Dive Co. (Ken Bill) on November 13, 2002 at 11:14:36:


Some of you are interested in what happened with Reef Seekers and the FBI so we thought we’d try to get out our side of the story. Suffice it to say that you guys can debate this all you want, but we will probably refrain from further comment. If anyone wants to e-mail us privately or call us, we’ll be happy to answer any questions.

We also want you to know that this is a very complex issue with many areas to be considered. Because of that, we’re going to post in two parts. This post is the “Cliff Notes” version. The second post will detail more fully the issues we considered and the concerns we had. We’d ask that you give us the courtesy of reading ALL the way through. You may agree with some, none, or all of our reasons but grant us the right to fully present our position(s) to you.

BTW, note that this is a JOINT decision of both Bill Wright and Ken Kurtis, Reef Seekers co-owners. The discussions and actions we took we both agree with so kudos or criticisms should be aimed at both of us, not just one of us.

Know that we had misgivings about turning over names from the start, for a lot of reasons. We thought the general idea of “student diver scuba terrorists” was rather ludicrous, that this was a waste of valuable already-limited government resources, that this was too broad a request which also violated constitutional 4th Amendment protections against unreasonable search & seizure, and that there were other legal pitfalls for any store voluntarily giving information without a court order to do so. We’ll discuss those various areas in the second post.

Also know that - unlike a lot of opinions expressed in this type of a forum - this was NOT a position we arrived at quickly or capriciously. The easy thing to do would simply have been to comply and hand over whatever they wanted. But every time we tried to find a
rationale to do that, we came back to the same answer of, “This just doesn’t feel right.” It’s simply NOT what we’ve always been taught is the way things work in America.

We spent a LOT of time discussing it and thinking our position through and thinking what it meant to us individually, what it meant to our business, and what it meant to our government and our American way of life. We do NOT relish the idea of taking on the U.S Government. But, by the same token, we think it’s not only our right but our duty as good Americans, to hold our government’s Constitutional feet to the fire when they seem to be stepping out of line.

And we were guided by some thoughts from some fairly significant historical figures:

“Those who sacrifice essential liberty for temporary safety are not deserving of either liberty or safety.” - Ben Franklin

“Liberty has never come from the government; it has always come from the subjects of it. The history of liberty is a history of limitation of governmental power, not the increase of it.” - Woodrow Wilson

“It is the duty of a citizen not only to observe the law but to let it be known that he is opposed to its violation.” - Calvin Coolidge

For all of these reasons, prior to being contacted, we had been in touch with the Electronic Freedom Foundation (EFF - Cindy Cohn, Legal Director), who had agreed to represent us pro bono in the event we should need legal representation or guidance in this area.

Here’s the short story:

We have always been more than willing to co-operate with the appropriate government authorities in the fight against terrorism. Specifically regarding the turning over of names of students, our position has consistently been that we’d be happy to comply with any
legal subpoena. By that, we’ve always meant that to mean any subpoena issued by an enforcement agency (LAPD, FBI, US District Attorney, etc.) whose terms/conditions/requests were upheld/ratified by a judge.

We were contacted in late June by the LAPD on behalf of the FBI and asked to voluntarily turn over the names, addresses, and contact info of all of our students for the past three years. They said they were mainly concerned with students who had dropped out of training. We declined but offered to turn over info if the search parameters could be narrowed to define the names to be those more likely to be possible terrorists, not “everybody.” In a subsequent meeting, they declined our offer and said they wanted everything on everybody. We declined but told them we’d comply with a legal subpoena.

In mid-July, we were served with a subpoena from a Federal Grand Jury asking for “. . . any and all information on all non-certified divers and referrals for the past three years.” We’d been under the opinion/illusion that a subpoena would be issued by a court after a
judge heard arguments for the issuance, in this case after the FBI had presented reasons for the request. But that’s not the case, at least not with this one.

Just so you know, these subpoenas do NOT require any judicial review nor are they even registered with any court. They are simply issued by the legal authority (U.S. District Attorney in this case) and only if someone chooses not to comply are they filed with the court so that legal action can be instituted for failing to comply with the subpoena.

Our intent from the beginning was to request judicial authority for the request as we felt the FBI was requesting information they’re not Constitutionally entitled to. We were also with the wording of the subpoena (which we attributed to it being sloppily drawn, not part
of an invasion-of-privacy plan). Did “non-certified divers” mean someone who had come in and just bought a mask? Did “any and all information” include medical and credit card information? Cindy Cohn of EFF left a message with the US District Attorney who had issued the subpoena and posed our questions. He called her back and his first response was the obligatory, “What are these guys trying to hide?” After some back-and-forth, Cindy and he discussed the concerns. He said he needed to consult with the FBI. Cindy also told him she was going to file a motion requesting a judicial review of the terms of the subpoena. He said he’d get back to us.

A day or so later he called back and said the subpoena was being withdrawn. End of story.

We don’t really know the reason for the withdrawal of the subpoena. All we can say is that, as far as we know, we’re the only ones to say, “Hold on a minute,” and when we added, “Let’s take this to a judge,” they said, “Never mind.”

Now comes the intricate part. What were our concerns that brought us to this position? For that, please go to the second post.

Ken Kurtis & Bill Wright
Co-owners, Reef Seekers Dive Co.
beverly Hills, CA

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