Reef Seekers & the FBI, part 2

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Posted by Reef Seekers Dive Co. (Bill Ken) on November 13, 2002 at 11:32:43:

BTW, there's an interesting opinion piece (by Jonathan Turley) on how the Justice Department is now operating in today's LA Times on page B13, right-hand side. Makes for an interesting comnpnaion piece to this.

Here’s where we’d like to share you with some of our concerns and thoughts in this whole thing. Again remember that this is a decision we made jointly, so castigate or praise us as a team, not individually.

In case you didn’t read Part 1 of this, the short version is that the FBI contacted us and asked us to voluntarily turn over the names and contact information on the people we’d certified in the last three years, we declined to voluntarily do so, we were issued a subpoena, and when we asked for a judicial hearing (through EFF, the Electronic Freedom Foundation and their legal director, Cindy Cohn) on the merits of the subpoena, the subpoena was withdrawn and has not been reissued to this date.

We’d also point out that this will be long and ask that you read ALL the way through it before you start formulating any replies or responses. You may not agree with everything, but at least do us the courtesy of allowing us to be fully heard.

“Those who sacrifice essential liberty for temporary safety are not deserving of either liberty or safety.” Throughout this whole ordeal, Franklin’s words rang loudly in our heads.

Some have said that the world changed on 9/11. Others have said that the world didn’t change, it’s just that we finally woke up to what the rest of the world already knew. Whatever your view, there’s no question we, as Americans, don’t view the world or ourselves, the same way we used to. And the task ahead for us, as the citizens of this country, is to define how we will deal with this “new” world and what changes, if any, we’re willing to make.

If we, at Reef Seekers, suspected there were terrorists in our midst, we’d be happy to make a phone call to the FBI. We’d also be willing to cooperate if the FBI came to us and said, “We’re interested in this specific individual. What can you tell us about your dealings
with him?” But that’s NOT what happened here.

Essentially, the FBI came to us (and every other dive shop) and said, “We don’t have any specific threats, but we think it’d be a good idea if we had access to all of your training records. We’ll go through them and see if anyone seems suspicious. If they do, we’ll
investigate them further. Will you please give us your records?” To us, this seemed simply like a fishing expedition that not only seemed constitutionally questionable, but which also stood a good chance of ensnaring innocent people. We didn’t feel comfortable voluntarily
being a part of that, nor did we feel that this is the way American justice is supposed to work.

This was also a radical departure from the previous contacts we’d had with the FBI. In November of 2001, we (and other stores) received a letter from the FBI that essentially said, “We don’t have any specific threats or information but we are concerned about a water-based attack. If you have anyone inquiring about exotic equipment such as rebreathers or underwater scooters, or people inquiring about underwater demolition or explosives, or people who just seem to be trying to do things way beyond their level of training OR expertise, would you please let us know?” We said we’d be happy to co-operate.

It’s been said that the attack on 9/11 was an attack on our “American Way of Life.” To us, nothing could better define “American Way of Life” than the U.S. Constitution. That’s the document that sets forth our rights, that puts limits on governmental power, and that really uniquely helps define “America.”

As much we’d like to defeat terrorism, the question is, “At what price?” If the choice is to defeat terrorism but the price is to trample the U.S. Constitution, is that a price we’re willing to pay? Or, if we defend the U.S. Constitution, but the price we pay is that we can’t get a 100% eradication of terrorism, is THAT a price we’re willing to pay?

We prefer to come down on the side of the Constitution. If one of the goals of the fight against terrorism is to preserve the “American Way of Life,” how can you do that by violating the very document that defines that way of life?

Our first thought was that this wholesale request for all names was a violation of the 4th Amendment, which protects us (meaning everyone) against unreasonable search and seizure without probable cause.

Understand that we are not necessarily talking about YOUR individual right to privacy here, whether or not that even exists. That’s a separate issue. Whether or not you have a reasonable right to expect any information you give to us (name, contact info, medical history, credit card information, etc.) to remain confidential is an issue that was never discussed.

What seems to get lost in the discussion many times is that a list of names of students is a piece of property that belongs to our business. Does the government have a right to come in and seize that, any more or less than they’d have a right to come in and seize our
compressor for fear that we might give a terrorist an airfill? We think they don’t, not without showing a reasonable need or probable cause. We also think that they know this, and that’s why they’re asking for “voluntary” cooperation, because that’s the only way
they can get this information.

On top of all that, we also think you have to take a step back and ask if “scuba terrorists” is really a plausible scenario. Some have posted that 9/11 made us realize that what used to be unthinkable was now thinkable. But that doesn’t mean that EVERYTHING that was unthinkable is now plausible.

(Also don’t lose sight of the fact that 9/11 wasn’t quite as unthinkable as we’d originally been told. We now know that intelligence agencies had postulated the possibility of a hijacked airliner being flown into a building, and FBI field agents did have some of the terrorists under observation. There were calls made from some of the airline training schools about suspicious characters. It’s not that we didn’t know things pre-9/11, it’s that we never put it all together to see the bigger picture.)

We have yet to talk to any diving professional who feels Al Qaeda is shipping their terrorists to the U.S. for dive training. (The reality is that this training is available anywhere in the world, probably including in downtown Kabul, Afghanistan.) We have yet to talk with any diving professional who feels that a basic student (not to mention a drop-out) would have the skill to navigate through a harbor in zero visibility (most students can’t navigate out to their car in the parking lot) and be able to plant an explosive (forgetting the fact that we’re told it would take far more explosives than a person can carry).

We have two diving friends, one ex-CIA and somewhat leftish, and one ex-Green Beret and somewhat rightish. They both tend to discount the efficiency of scuba terrorists and point out that you can much more easily do much more damage with a high-speed zodiac or a truck on the dock each loaded with explosives.

So regardless of whether you think we should turn over names or not, you have to ask yourself if we, as good citizens, have an obligation to try to prevent our government from going on a wild goose chase, yet alone one that might infringe on Constitutional guarantees. We think the answer is “Yes.” Why do we want our government wasting their
time looking down blind alleys when the same manpower and effort could possibly be put to more productive use?

In fact, if Al Qaeda is engaging in a disinformation campaign, isn’t something like this a good way to eat up a lot of manpower, foster the image that “they’re everywhere,” and make us feel less safe and more vulnerable? The goal of terrorism is to invoke terror. And
if you can simply get a populace to be afraid of everything (“They’re also going to blow up nuclear power plants and poison the water supply!!!”) then you’ve accomplished your aim.

In talking with the FBI rep, it was clear that he knew little about scuba instruction. He didn’t understand that there’s a difference in skill level between a newbie and an experienced diver. He thought that every diver who signs up for a course is given a full set
of scuba gear the first night of class (which is why they’re concerned with drop-outs since they also erroneously assume the drop-outs take all the gear with them). He wasn’t aware that some divers do referrals. He wasn’t aware that it takes more than one lesson. He
wasn’t aware that you’re supposed to have a certification card for airfills and to buy gear (not that you can get stuff without a c-card, but it’s just one more thing he was unaware of).

We offered to work with the FBI, to educate them, and help them to narrow their search to potentially more productive targets. The response always came back, “We just want all the names.”

So then you have to ask, “How will you use the names if we give them you?”

If the FBI is going to sift through the names and simply look for known terrorists, it doesn’t get them much new information. If they’re simply going to look for names that seem Arab-sounding, then they miss Richard Reid, the alleged Shoe Bomber. If they decide that they’ll look at all foreign nationals, then they miss Jose Padilla, the alleged Dirty Bomber.

So the only way to really get any benefit out of this list (and the FBI guy said we were pretty much on track with this) is to look at each name and determine their innocence to clear them off the list. That might involve a mini-investigation that looks into travel plans,
banking info, or whatever. If they can’t “clear” you, then your name goes into a database. If your name starts cropping up too many times, you then become a “person of interest.”

This all smacks of “guilty-until-proven-innocent” and then you’re back to asking yourself if that’s a part of our “American Way of Life” you’re willing to give up. And if you are willing to give that up, is this something that can strictly be contained to the fight against terrorism, or is it something that will start creeping into other areas of American jurisprudence?

Of concern to us, but never really discussed due to the final outcome, was how we’d be asked to transmit the names to the FBI. If we simply made a list from our files, how would the FBI know that we had actually given them everything?

One concern was that the only way for them to be sure they had everything was to take our student folders and our computer records. The problem there is that they now have much more than just names and addresses. They’ve got medical information from the student folder and credit card information from the computer files. Where do you draw the line?

As you probably know, PADI and NAUI turned over their databases. PADI touted that they had an “agreement” with the FBI as to how they would use the names and made it sound like this was a huge concession and gave PADI control over how the FBI used the information.

But according to Cindy Cohn, who’s also a PADI-certified diver, this isn’t necessarily so. If it’s simply a verbal agreement, it has no teeth if the FBI violates the terms of the agreement. There’s simply no way to enforce it. However, if PADI had chosen to go to court and got a judge to sanction the exact same agreement, they would have had the court’s backing in making sure the FBI only used the information in the way it was agreed to with PADI.

And this is where the role of the court comes in. The whole idea of the balance of power between the Executive, Legislative, and Judiciary is that there are checks and balances in place. All we (Reef Seekers) ever did was exercise our right to request a judicial
hearing/ruling on the matter. If a judge had ordered us to comply, pending whether or not we’d appeal the decision to a higher court, the bottom line is that when a final decision was handed down, we’d comply fully. All we were asking for is our day in court. What’s
wrong with that?

The subpoena itself was interesting. It was issued not by the FBI, but by the U.S. District Attorney. It demanded that we turn over our records not to the FBI, but to a Federal Grand Jury investigating terrorism. This is interesting for a number of reasons.

Historically, judges grant a lot more leeway to subpoenas requesting information for a grand jury since the information is supposed to stay within the grand jury room. If indictments are issued, then the evidence can be re-subpoenaed under the existing rules of evidence. This is one reason grand jury subpoenas are given tremendous leeway, more so than investigative agencies might be.

Enter the “USA Patriot Act,” passed post-9/11 by the Congress and signed by the President. Among the provisions of the Act is to grant to grand juries the leeway to take any information that they feel may be related to terrorism, and, instead of requiring that information to stay inside the grand jury room, the grand jury is now permitted to pass that information out of the grand jury room to whomever they think is the appropriate law enforcement agency.

Specifically with us, Cindy Cohn’s opinion was that if the subpoena had just come from the FBI, a judge probably wouldn’t allow it, ruling that it was too broad and non-specific, and lacked probable cause. However, by making the subpoena come from a grand jury, if
a judge granted the motion we would have handed over our information to the grand jury, who could then find that it related to terrorism, and could now legally pass it out of the grand jury room and turn it over to the FBI.

Basically, it represented an end run around the Constitution to allow the FBI access to information that it probably isn’t entitled to get. That may also be why the subpoena was withdrawn. If a judge ruled against the subpoena, it could shut off a flow of information to
which the FBI has no legal claim, but which is now being given “voluntarily” because people are understandably not too nuts about confronting the government, especially when it’s terrorist-related.

The final concern for us dealt with possible legal ramifications for Reef Seekers. Interestingly some of the shops we’ve talked to in the past month or so who DID turn over names now are expressing this same concern.

Our concern was that if we turn over names and someone’s name gets tagged as suspicious, it’s possible that that person could get ensnared in an investigation that then forces them to hire an attorney to defend themselves or clear their name. Assuming they’re
innocent, at the end of all this they’re likely to say, “How did this all get started?” and it comes back to the store that gave up their name.

Now if that name was provided voluntarily, the person may have grounds to sue the shop. But, if the shop was under a court order to turn over names, there’s not likely to be any liability.

It may seem like a small distinction to some of you, but we have a responsibility to ourselves to look out for the health of our business and, especially given all of our other concerns about this, we felt that requesting a court to sanction us turning over the names
gave us added legal protection in the event of innocent people getting caught up in all of this.

So that’s pretty much the entire breadth and depth of our thinking. You may agree with all, some, or none of what we think. As we said earlier, this was not a stance we took lightly. But we felt we had an obligation to ourselves, to our customers, to our business, and, more importantly, to our country, to have these issues aired. All we can hope is that those businesses who did choose to turn over names, considered the same issues and the same ramifications that we did. We assume it was as difficult a decision for them as it was for us.

Although we have achieved our immediate goal of not voluntarily turning over any names, unfortunately the lack of a court hearing means that these very important issues have not seen the light of day. And that may simply mean that in the battle to protect our rights, your rights, and what we see as the “American Way of Life,” we may have won the skirmish, but not the war.

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

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