Legal Experts Say Rep. Lamar Smith's Bill "Encourages Neighbors To Spy On Neighbors"

June 23, 2011 3:51 pm ET — Brian Powell

Rep. Lamar Smith

Legal experts are warning that H.R. 963, also known as the "See Something, Say Something Act of 2011," could have a significant negative impact on the civil liberties of the American people. The bill was introduced by House Judiciary Committee Chairman Lamar Smith (R-TX) and will be the subject of a hearing Friday before the Subcommittee on the Constitution.

This is not the first time Smith's legislation has been criticized for harming civil liberties; just a few weeks ago he was denounced for proposing a bill that would give the federal government the power to detain some immigrants indefinitely.

H.R. 963, according to its summary, will grant immunity from civil liability to persons who report suspicious activity indicating that an individual may be engaging in some sort of terrorist activity, as well as to law enforcement reacting to such reports. Legal scholars predict the bill would encourage citizens to spy on one another and remove disincentives for companies who wish to share client information with the government but have hesitated to do so for fear of being sued.

Mike German, a policy counsel for the American Civil Liberties Union's Washington Legislative Office, told Political Correction that H.R. 963 would add to the power of a broader, dangerous group of "suspicious activity reporting" (SAR) initiatives currently in use by federal, state, and local governments. Those initiatives are threatening the First Amendment rights of average Americans and actually impeding the ability of law enforcement to react to legitimate security threats.

"The government is encouraging people to report one another based on innocuous behavior," said German, "like taking notes, photography, asking questions, etc. — completely protected First Amendment activities."

German was referring in part to the Department of Homeland Security's "If You See Something, Say Something" campaign, which provides federal employees and private citizens guidelines about what kinds of "suspicious activity" should be reported, including running near a secure facility, operating a boat "aimlessly," and photography of all kinds. According to German, H.R. 963 would only exacerbate the problems caused by these other SAR programs.

"We're concerned that this encourages neighbors to spy on neighbors," said German. "And once reported, it goes into this cloud of suspicion that follows people around." He compared H.R. 963 and the government's SAR initiatives to former President Bush's controversial Operation Terrorism and Prevention System (TIPS) program, which was banned after staunch opposition from both hard-right conservatives and liberals in Congress for, in the words of then-House majority leader and current Tea Party leader Dick Armey, helping "Americans to spy on one another."

"Here we are ten years later and Congress is supporting virtually the same program," said German. 

German also noted that H.R. 963 would only exacerbate the inundation of claims being felt by local law enforcement offices in the wake of the wave of SAR programs. Some departments and agencies already complain that it's difficult to sort out the real threats from the harmless ones.

In addition to helping turn everyday citizens against one another, H.R. 963 could also provide an easier path for corporations to share data relating to the personal information and activities of their customers with the government. H.R. 963 would provide private firms with immunity from civil lawsuits resulting from their voluntary cooperation with law enforcement.

"This is less about the real suits than the threat of lawsuits," Richard Myers, a former federal prosecutor and an Associate Professor at the University of North Carolina's law school, told Political Correction. He said that the bill would be an asset to law enforcement officials who want information from private firms and corporations about their clients or customers.

"I could envision FBI agents or law enforcement officers having a copy of this in their notebook," said Myers. Officials could reference it when asking for information from companies (e.g., Internet Service Providers), which would likely fall under the definition of "any person" in H.R. 963. They could tell corporate agents that while they don't have to provide the government with information, they'll be immune from liability if they do, something that could convince more companies to turn over personal information.