[House Report 112-204]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-204

======================================================================



 
                SEE SOMETHING, SAY SOMETHING ACT OF 2011

                                _______
                                

 September 12, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 963]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 963) to amend the Homeland Security Act of 2002 to 
provide immunity for reports of suspected terrorist activity or 
suspicious behavior and response, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     7
Committee Consideration..........................................     7
Committee Votes..................................................     7
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................     9
Advisory on Earmarks.............................................     9
Section-by-Section Analysis......................................     9
Changes in Existing Law Made by the Bill, as Reported............    11
Dissenting Views.................................................    14

                          Purpose and Summary

    H.R. 963 creates a statutory qualified immunity protection 
for individuals who report suspicious terrorism-related 
activity and for law enforcement officers who respond in good 
faith to citizens' reports.

                Background and Need for the Legislation

    The bill buttresses efforts, such as the Department of 
Homeland Security's ``See Something, Say Something'' 
campaign,\1\ to encourage citizens to share information 
regarding suspicious activity that may be related to terrorism.
---------------------------------------------------------------------------
    \1\See, e.g., Department of Homeland Security, ``If You See 
Something, Say Something'' campaign website, available at http://
www.dhs.gov/files/reportincidents/see-something-say- something.shtm.
---------------------------------------------------------------------------
    The ``See Something, Say Something Act'' amends the 
Homeland Security Act of 2002.\2\ The Act protects vigilant 
citizens and law enforcement officers who use their common 
sense to help prevent the next terrorist attack.
---------------------------------------------------------------------------
    \2\6 U.S.C. Sec. Sec. 451 et seq.
---------------------------------------------------------------------------
    The bill creates immunity from civil suit for any person 
who in good faith reports to authorities ``any suspicious 
transaction, activity, or occurrence indicating that an 
individual may be engaging, or preparing to engage, in a 
violation of law relating to an act of terrorism.'' The bill 
also codifies qualified immunity protection for reasonable good 
faith actions taken in response to reports of suspicious 
activity by any Federal, State, or local law enforcement 
officer or Federal official with responsibility for protecting 
against terrorist activity. If the bill's immunities apply, 
then the party found to be immune ``shall be entitled to 
recover from the plaintiff all reasonable costs and attorneys 
fees.''
    These protections are necessary to encourage citizens to 
share their reasonable suspicions with law enforcement officers 
without fear of liability. The protections for law enforcement 
officers will similarly empower law enforcement officers to 
reasonably pursue citizen tips without fear of being sued.
    While good faith actions to prevent a terrorist attack may 
not necessarily give rise to liability under existing law 
following protracted and costly litigation, and existing law 
may provide qualified immunity for citizens or law enforcement 
officers in specific situations and jurisdictions, the bill's 
codification of a simple, easily understood, and generally 
applicable qualified immunity standard will increase citizens' 
and law enforcement officers' ability to act in good faith to 
investigate suspicions and prevent attacks.

               A. ALERT CITIZENS HAVE THWARTED PAST PLOTS

    Many times over the past decade, tips from alert citizens 
have helped to thwart potential terrorist attacks.
1. Attempted Attack on Times Square
    On May 1, 2010, street vendor Lance Orton noticed 
suspicious smoke coming from a parked van, and acted with other 
vendors to inform a nearby New York City police officer. The 
suspicious smoke was the result of bomb ignited by Faisal 
Shahzad, who had trained at a Pakistani terrorist training 
camp.\3\
---------------------------------------------------------------------------
    \3\Eileen Sullivan & Kimberly Dozier, Boston Herald, ``Sources: 
Bomber trained at Pakistan terror camp,'' (May 4, 2010), available at 
http://www.bostonherald.com/news/national/northeast/view/
20100504sources_times_square_bomber_trained_at_pakistan_terror_camp/.
---------------------------------------------------------------------------
    Following the tip, officials were able to disarm the Times 
Square bomb before it could explode, and Faisal Shahzad was 
later arrested after boarding an international flight. The 
street vendors who noticed the suspicious smoke prevented this 
attempted bombing. Hours after the thwarted attack, vendor 
Lance Orton was asked what he had to say to fellow New Yorkers: 
``See something, say something,'' he said.\4\
---------------------------------------------------------------------------
    \4\Michael Schmidt, New York Times, ``T-Shirt Vendor Takes On New 
Persona: Reluctant Hero of Times Square,'' (May 2, 2010), available at 
http://cityroom.blogs.nytimes.com/2010/05/02/t-shirt-vendor-takes-on-
new-persona-reluctant-hero-of-times-square/.
---------------------------------------------------------------------------
2. Arrest of Lubbock, Texas man
    In January, Lubbock, Texas resident Khalid Aldawsari placed 
suspicious purchases of the chemical Phenol, which can be used 
to make explosives.\5\ The North Carolina chemical company, 
with whom the orders were placed, noticed the suspicious 
purchases and reported them to the FBI.
---------------------------------------------------------------------------
    \5\James McKinley & Sarah Wheaton, New York Times, ``Saudi Student 
to Be Arraigned in Bomb Plot,'' (Feb. 25, 2011), available at http://
www.nytimes.com/2011/02/26/us/26texas.html.
---------------------------------------------------------------------------
    The FBI's investigation uncovered purchases of other 
chemicals, which, combined with Phenol, can make the explosive 
T-N-P. An FBI search of his computer uncovered emails 
describing potential targets including reservoirs and dams, 
nuclear power plants, night clubs, and the Dallas home of 
former President George W. Bush. The FBI promptly arrested 
Aldawsari.\6\
---------------------------------------------------------------------------
    \6\Jason Ryan, ABC World News, ``Texas Student Khalid Aldawsari 
Arrested on Terror Charges; Targeted George W. Bush,'' (Feb. 24, 2011), 
available at http://abcnews.go.com/Politics/texan-charged-plans-bomb-
bush-home-dams-nuclear/story?id=12990927.
---------------------------------------------------------------------------
3. Christmas Day Bombing
    On Christmas Day in 2009, Umar Farouk Abdulmutallab boarded 
an international flight with plastic explosives that he had 
concealed in his underwear.\7\ As he attempted to detonate the 
explosives, airline passengers worked together to tackle the 
terrorist, and put out the fire that the explosives had caused.
---------------------------------------------------------------------------
    \7\Mark Hosenball, Newsweek, ``The Radicalization of Umar Farouk 
Abdulmutallab,'' (Jan. 2, 1010), available at http://www.newsweek.com/
2010/01/01/the-radicalization-of-umar-farouk-abdulmutallab.html.
---------------------------------------------------------------------------
    While two of the passengers were injured in the attempted 
bombing, they were able to subdue and handcuff Abdulmutallab as 
the pilot safely landed the plane. As this attack demonstrates, 
ordinary citizens who remain alert and vigilant about their 
surroundings are America's first line of defense against 
terrorist attacks.
4. Fort Dix Six
    In 2007, a teenage clerk at an electronics store was asked 
by two men to transfer a videotape to a DVD. When the teenager 
and another employee went into the back room and started the 
process of transferring the tape, they found themselves 
watching several jihadists shooting some very large weapons. 
The teen frantically told his coworker what he had witnessed. 
And then he said, ``I don't know what to do. Should I call 
someone or is that being racist?''\8\
---------------------------------------------------------------------------
    \8\Jana Winter, New York Post, ``Clerk Rings Up N.J. Jihad 
Clerks,'' (May 13, 2007), available at http://www.nypost.com/p/news/
regional/item_0oS2xKmNdVwCzcvzxPuCBL.
---------------------------------------------------------------------------
    Here, the teenage clerk was brave enough to overcome his 
fear of political correctness. He called the FBI. As a result, 
a group of terrorists who became known as the ``Fort Dix Six'' 
were captured. The FBI believes the ``Fort Dix Six'' were in 
the final stages of preparing for an armed assault on Fort Dix, 
and perhaps other military installations, where they could have 
killed or injured men and women in our armed forces.

      B. FAILURE TO SHARE SUSPICIONS CAN HAVE TRAGIC CONSEQUENCES

    By tragic contrast to the thwarted attacks above, 13 men 
and women were murdered by Army psychologist Nidal Hasan at 
Fort Hood, Texas. This was the deadliest terror attack on 
American soil since September 11. This tragedy could perhaps 
have been avoided if suspicions about Hasan's behavior had been 
raised and acted upon before the attack.
    Multiple reports indicate that, before the attack, Hasan 
engaged in extreme rhetoric and other suspicious behavior. 
Indeed, Hasan's publicly displayed sympathy for radical Islam 
throughout his residency at Walter Reed Army Medical Center and 
post-residency fellowship at the Uniformed Service University 
of Health Sciences (``USUHS'') led two colleagues to describe 
him as ``a ticking time bomb.''\9\
---------------------------------------------------------------------------
    \9\U.S. Senate Homeland Security and Governmental Affairs 
Committee, Chairman Joseph I. Lieberman and Ranking Member Susan M. 
Collins, ``A Ticking Time Bomb: Counterterrorism Lessons from the U.S. 
Government's Failure to Prevent the Fort Hood Attack,''at p. 27 
(February 2011) (hereafter ``Lieberman/Collins Report''), available at 
http://hsgac.senate.gov/public/_files/Fort_Hood/FortHoodReport.pdf.
---------------------------------------------------------------------------
    During the last month of his residency Hasan, like all 
other psychiatric residents at Walter Reed, was required to 
deliver an academic presentation on psychiatric issues. Hasan 
chose to fulfill this requirement with a lecture on violent 
Islamic extremism.\10\ Hasan's draft of this presentation 
consisted almost entirely of citations to the Koran, with 
almost no mention of scientific or psychiatric material.\11\ 
The draft presented extremist interpretations of Islam that 
supported the killing of non-Muslims, argued that the September 
11 attacks might be defended as an act of revenge, and that 
having Muslim-Americans in the military created a risk of 
murder against their fellow soldiers.\12\
---------------------------------------------------------------------------
    \10\Id. at 28.
    \11\Id.
    \12\Id. at 28-29.
---------------------------------------------------------------------------
    After his residency, Hasan was accepted to a fellowship at 
USUHS. He displayed his radicalism almost immediately and 
throughout this fellowship.\13\ A presentation he delivered 
early in the fellowship was so inflammatory and supportive of 
violent extremism against the United States that the instructor 
halted the presentation after a few minutes.\14\ In discussions 
with classmates, Hasan on more than one occasion justified the 
actions of suicide bombings and suggested that the actions of 
Osama bin Laden were justified.\15\
---------------------------------------------------------------------------
    \13\Id. at 29-30.
    \14\Id.
    \15\Id. at 30.
---------------------------------------------------------------------------
    Hasan's suspicious activity continued up until the day of 
his attacks. He corresponded with radical jihadi cleric Anwar 
al-Awlaki\16\ and, on the night before his attack told a fellow 
soldier that he should quit the military because he believed 
the Koran forbids alliances with Christians and Jews.\17\ On 
the night before his murder spree, Hasan gave away all of his 
possessions and distributed copies of the Koran.\18\
---------------------------------------------------------------------------
    \16\See Elizabeth Bumiller and Scott Shane, New York Times, 
``Pentagon Report on Fort Hood Details Failures,'' (Jan. 15, 2010), 
available at http://www.nytimes.com/2010/01/16/us/politics/
16hasan.html; Carrie Johnson, Washington Post, ``FBI to Probe Panels 
that Reviewed E-Mails from Alleged Fort Hood Gunman,'' (Dec. 9, 2009), 
available at http://www.washingtonpost.com/wp-dyn/content/article/2009/
12/08/AR2009120801731.html.
    \17\Testimony of Lawrence J. Haas, House Judiciary Subcommittee on 
the Constitution Hearing on H.R. 963, ``The See Something, Say 
Something Act of 2011'' at 6 (June 24, 2011).
    \18\Id.
---------------------------------------------------------------------------
    None of this suspicious activity was reported to the proper 
authorities in a way that identified Hasan's activities as 
suspicious. Indeed, despite his poor performance as an Army 
psychiatrist, his superiors gave him strong evaluations.\19\ 
The failure of his medical colleagues to report Hasan's 
suspicious and violent rhetoric is at least partly attributable 
to ``a fear of litigation, a fear of being called bigots, or a 
fear of being wrong about the nuances of a theo-political 
ideology.''\20\ Out of political correctness and a fear of 
reprisal, Hasan's suspicious activities went unreported.
---------------------------------------------------------------------------
    \19\Lieberman/Collins Report at 33.
    \20\Testimony of M. Zuhdi Jasser, M.D., House Judiciary 
Subcommittee on the Constitution Hearing on H.R. 963, ``The See 
Something, Say Something Act of 2011'' at 5 (June 24, 2011).
---------------------------------------------------------------------------
    On the morning of November 5, 2009, Nidal Hasan walked in 
to a deployment center at Fort Hood near Killeen, Texas, and 
opened fire, killing 13 Department of Defense employees and 
wounding 32 others.\21\ Better sharing of his suspicious 
activities could have prevented the attack.
---------------------------------------------------------------------------
    \21\Lieberman/Collins Report at 7.
---------------------------------------------------------------------------

        C. THE THREAT OF LITIGATION COULD CHILL CITIZEN REPORTS

    Unfortunately, at least part of citizens' reluctance to 
share information about potential terrorist attacks could be 
related to the threat of litigation if the suspicions are 
mistaken.
    When the passengers of a 2006 U.S. Airways flight noticed 
behavior by six men that they genuinely believed to be 
suspicious, they alerted the crew.\22\ The crew shared the 
suspicions, and these men were removed from the plane. 
Authorities then detained and questioned the men.
---------------------------------------------------------------------------
    \22\See Scott W. Johnson, The Weekly Standard, ``The Flying Imams 
Win: And the rest of us lose'' (Nov. 9, 2009), available at http://
www.weeklystandard.com/Content/Public/Articles/000/000/017/
148tyfxg.asp?page=1; see also Libby Sander, New York Times, ``6 Imams 
Removed from Flight for Behavior Deemed Suspicious,'' (Nov. 22, (2006), 
available at http://www.nytimes.com/2006/11/22/us/
22muslim.html?bl&ex=1164517200&en=24531ca1fa7314e1&ei=5087%0A.
---------------------------------------------------------------------------
    The authorities ultimately determined that the six men did 
not pose a threat, and they were released. However, the men 
then sued the airport, the airline, the authorities, and the 
passengers who had voiced their sincere concerns.
    For the airline passengers who had merely shared their 
suspicions out of a good faith desire to keep themselves and 
their fellow passengers safe, the prospect of prolonged and 
costly litigation to defend their actions was potentially 
ruinous. Without a clear statutory immunity for their good 
faith actions, the passengers would have been forced to retain 
counsel and defend themselves through litigation that could 
potentially last years and cost tens of thousands of dollars or 
more. Even if, at the end of this process, their actions were 
vindicated, the passengers would have lost considerable time in 
defending the suit and incurred significant legal fees for 
which they were not insured. Absent a statutory fee shifting 
provision, the passengers had little prospect of recovering 
these fees from the plaintiffs.
    Absent Congressional action, the message of the U.S. 
Airways flight and the subsequent litigation would have been 
that citizens should keep their suspicions to themselves, lest 
they subject themselves to a lawsuit for reporting suspicious 
activity. Nothing could undermine the government's interest in 
encouraging citizens to say something when they see something 
as surely as liability for citizens who report their good faith 
suspicions.
    Fortunately, Congress did enact a statutory immunity with a 
fee shifting provision, P.L. 110-53, Sec. 1206,\23\ on an 
overwhelming bipartisan basis in 2007. This provision 
buttressed the passengers' legal position by clarifying that 
their good faith report could not lead to liability against 
them, and that they would be entitled to recover legal fees 
from the plaintiffs in the lawsuit.
---------------------------------------------------------------------------
    \23\Codified at 6 U.S.C. Sec. 1104.
---------------------------------------------------------------------------
    Recognizing that this statute made it far more difficult to 
sue the passengers and potentially made the plaintiffs 
responsible for the passengers' legal expenses, the plaintiffs 
in the U.S. Airways litigation dropped their claims against the 
passengers shortly after Congress adopted the 2007 law.

  D. THE BILL EXPANDS CURRENT LAW THAT APPLIES ONLY TO TRANSPORTATION 
                                SYSTEMS

    P.L. 110-53, Sec. 1206, which was adopted in 2007 with 
overwhelming bipartisan support in response to the U.S. Airways 
lawsuit, creates immunity from suit only for reports of ``any 
suspicious transaction, activity, or occurrence that involves, 
or is directed against, a passenger transportation system or 
vehicle or its passengers.''\24\ H.R. 963 expands these 
immunities so that they would apply to reporting ``any 
suspicious transaction, activity, or occurrence,'' regardless 
of whether a passenger transportation system is involved.
---------------------------------------------------------------------------
    \24\6 U.S.C. Sec. 1104(d)(2).
---------------------------------------------------------------------------
    Accordingly, the definition of the ``Authorized Officials'' 
entitled to immunity is expanded in the bill to include ``any 
officer, employee, or agent of the Federal Government with 
responsibility for preventing, protecting against, disrupting, 
or responding'' to suspicious terrorism-related activity. The 
2007 law only offered immunity to employees of passenger 
transportation systems and Department of Homeland Security 
(DHS), Department of Transportation (DoT), or Department of 
Justice (DoJ) officials with responsibilities relating to the 
security of passenger transportation systems.\25\
---------------------------------------------------------------------------
    \25\6 U.S.C. Sec. 1104(d)(1)(b).
---------------------------------------------------------------------------
    The terrorist threat is not limited to transportation 
systems, and citizens should be encouraged to make good-faith 
reports of suspicious activity free from fear of reprisal 
whether or not transportation is involved.
    If the government is going to encourage citizens to report 
suspicious activity, as it should, then we must also protect 
those citizens from being sued for making such reports. The 
``See Something, Say Something Act'' ensures that Americans can 
exercise their common sense to protect against and prevent 
terrorist attacks.

                                Hearings

    The Committee's Subcommittee on the Constitution held one 
day of hearings on H.R. 963, on June 24, 2011. Testimony was 
received from Lawrence J. Haas, Dr. M. Zuhdi Jasser, President 
of the American Islamic Forum for Democracy, and Chief Chris 
Burbank of the Salt Lake City Police Department, with 
additional material submitted by Congressman Peter King, 
Chairman of the House Homeland Security Committee, and the 
National Fraternal Order of Police.

                        Committee Consideration

    On July 21, 2011, the Committee met in open session and 
ordered the bill H.R. 963 favorably reported without amendment, 
by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 963.
    1. An amendment by Ms. Chu to prohibit extension of 
immunity to bias-based reports. Defeated 4 to 16.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................
Mr. Berman......................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              4              16
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 963, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 9, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 963, the ``See 
Something, Say Something Act of 2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Sarah Puro 
(for Federal costs), who can be reached at 226-2860, and Amy 
Petz (for the private-sector impact).
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.
Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 963--See Something, Say Something Act of 2011.
    H.R. 963 would amend the Homeland Security Act of 2002 to 
grant immunity from civil liability to people who report 
suspicious activities that would violate the law relating to 
terrorism. Under current law, citizens are protected from 
liability in cases when they report suspicious activities on 
transportation systems. The bill would expand that protection 
to any citizen in any circumstance. Because the bill would 
address a private right of action and based on information from 
the Department of Homeland Security, CBO estimates that the 
bill would have no effect on the Federal budget. Enacting H.R. 
963 would not affect direct spending or revenues; therefore, 
pay-as-you-go procedures do not apply.
    H.R. 963 would impose an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA) by 
preempting State and local liability laws. CBO estimates that 
the preemption would not significantly affect the budgets of 
State, local, or tribal governments; while the mandate would 
limit the application of State and local laws, it would impose 
no duty that would result in additional spending.
    By expanding protections against civil liability claims for 
individuals who report suspicious terrorist-related activities 
to an authorized official, the bill would eliminate an existing 
right to seek compensation for damage caused by certain acts; 
that expansion would impose a private-sector mandate. The 
direct cost of the mandate would be the forgone net value of 
awards and settlements in such claims. Because there is a lack 
of information about both the value of awards in such cases and 
the number of claims that would be filed in the absence of this 
legislation, CBO has no basis for predicting the level of 
potential damage awards, if any. Thus, CBO cannot estimate the 
cost of this mandate or whether that cost would exceed the 
annual threshold established in UMRA for private-sector 
mandates ($142 million in 2011, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Sarah Puro 
(for Federal costs) and Amy Petz (for the private-sector 
impact). The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
963 is designed to encourage the sharing of information 
respecting potential terrorist attacks by reducing the threat 
of litigation against citizen informants and law enforcement 
responders.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 963 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

Section 1:
        Short title.
Section 2(a):
        Provides for new Sec. 890A to be added at the end of 
        the Homeland Security Act of 2002. For ease of 
        reference, the section-by-section analysis below will 
        analyze the sections of this new Sec. 890A.
Section 890A(a)(1):
        Creates immunity from civil liability under Federal, 
        State, and local law for any person who, in good faith 
        and based on objectively reasonable suspicion, reports 
        ``covered activity'' to an ``authorized official.''

        Covered activity is defined by Section 890A(d)(2) to 
        mean ``any suspicious transaction, activity, or 
        occurrence indicating that an individual may be 
        engaging, or preparing to engage, in a violation of the 
        law relating to an act of terrorism.''

        Authorized official is defined by section 890A(d)(1) to 
        mean either ``any officer, employee, or agent of the 
        Federal Government with responsibility for preventing, 
        protecting against, disrupting, or responding to a 
        `covered activity''' or ``any Federal, State, or local 
        law enforcement officer.''
Section 890A(a)(2):
        Provides that immunity shall not apply to reports that 
        the person knew to be false or made with reckless 
        disregard for the truth.
Section 890A(b)(1):
        Creates and clarifies immunity for any authorized 
        official who observes or receives a report of covered 
        activity, and takes reasonable action in good faith to 
        respond to the activity. So long as the authorized 
        official's actions are reasonable and taken in good 
        faith to respond to the reported activity, then the 
        official is immune from suit even if the defense of 
        qualified immunity would not otherwise be available.
Section 890A(b)(2)(a):
        Provides that the availability of the defense under 
        this section does not affect an authorized official's 
        ability to assert any other defense, such as qualified 
        immunity, that may be available.
Section 890A(b)(2)(b):
        Clarifies that the statute does not change or otherwise 
        affect the contours of other defenses, privileges, or 
        immunities that may be available. The statute creates a 
        defense that is independent of and separate from 
        existing defenses, privileges, and immunities.
Section 890A(c):
        Provides that an authorized official or person who is 
        found to be immune under the defense created by this 
        statute shall be entitled to recover all reasonable 
        costs and attorneys fees from the plaintiff.
Section 890A(d)(1)
        Defines ``authorized official to mean either ``any 
        officer, employee, or agent of the Federal Government 
        with responsibility for preventing, protecting against, 
        disrupting, or responding to a `covered activity''' or 
        ``any Federal, State, or local law enforcement 
        officer.''
Section 890A(d)(2):
        Defines ``covered activity'' to mean ``any suspicious 
        transaction, activity, or occurrence indicating that an 
        individual may be engaging, or preparing to engage, in 
        a violation of the law relating to an act of terrorism 
        (as that term is defined in section 3077 of title 18, 
        United States Code).''

        18 U.S.C. Sec. 3077 defines an ``act of terrorism'' to 
        include acts of either domestic or international 
        terrorism, as those terms are defined in 18 U.S.C. 
        Sec. 2331.

        18 U.S.C. Sec. 2331 defines both ``international 
        terrorism'' and ``domestic terrorism'' as ``acts 
        dangerous to human life'' that violate criminal law or 
        would violate criminal law if committed within the 
        jurisdiction of the United States or of any State, and 
        that appear to be intended to (1) intimidate or coerce 
        a civilian population; (2) influence the policy of a 
        government by intimidation or coercion; or (3) to 
        affect the conduct of a government by mass destruction, 
        assassination, or kidnapping. The term ``domestic 
        terrorism'' covers activities that meet this definition 
        and occur primarily within the territorial jurisdiction 
        of the United States, while ``international terrorism'' 
        covers activities that occur primarily outside the 
        territorial jurisdiction of the United States or that 
        transcend national boundaries. Activities related to 
        either variety fall within the definition of ``covered 
        activities'' in H.R. 963.
Section 2(b):
        Amends the table of contents of the Homeland Security 
        Act of 2002 to insert a reference to the new Section 
        890A created by the bill.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) * * *
    (b) Table of Contents.--The table of contents for this Act 
is as follows:

Sec. 1. Short title; table of contents.
     * * * * * * *

 TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; 
      UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

     * * * * * * *

                  Subtitle H--Miscellaneous Provisions

     * * * * * * *
Sec. 890A. Immunity for reports of suspected terrorist activity or 
          suspicious behavior and response.

           *       *       *       *       *       *       *


TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; 
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

           *       *       *       *       *       *       *


Subtitle H--Miscellaneous Provisions

           *       *       *       *       *       *       *


SEC. 890A. IMMUNITY FOR REPORTS OF SUSPECTED TERRORIST ACTIVITY OR 
                    SUSPICIOUS BEHAVIOR AND RESPONSE.

    (a) Immunity for Reports of Suspected Terrorist Activity or 
Suspicious Behavior and Response.--
            (1) In general.--Any person who, in good faith and 
        based on objectively reasonable suspicion, makes, or 
        causes to be made, a voluntary report of covered 
        activity to an authorized official shall be immune from 
        civil liability under Federal, State, and local law for 
        such report.
            (2) False reports.--Paragraph (1) 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 that report.
    (b) Immunity for Response.--
            (1) In general.--Any authorized official who 
        observes, or receives a report of, covered activity and 
        takes reasonable action in good faith to respond to 
        such activity shall have qualified immunity from civil 
        liability for such action, consistent with applicable 
        law in the relevant jurisdiction. An authorized 
        official as defined by section (d)(1)(A) not entitled 
        to assert the defense of qualified immunity shall 
        nonetheless be immune from civil liability under 
        Federal, State, and local law if such authorized 
        official takes reasonable action, in good faith, to 
        respond to the reported activity.
            (2) Savings clause.--Nothing in this subsection 
        shall--
                    (A) affect the ability of any authorized 
                official to assert any defense, privilege, or 
                immunity that would otherwise be available; and
                    (B) be construed as affecting any such 
                defense, privilege, or immunity.
    (c) Attorney Fees and Costs.--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.
    (d) Definitions.--In this section:
            (1) Authorized official.--The term ``authorized 
        official'' means--
                    (A) any officer, employee, or agent of the 
                Federal government with responsibility for 
                preventing, protecting against, disrupting, or 
                responding to a ``covered activity;'' or
                    (B) any Federal, State, or local law 
                enforcement officer.
            (2) Covered activity.--The term ``covered 
        activity'' means any suspicious transaction, activity, 
        or occurrence indicating that an individual may be 
        engaging, or preparing to engage, in a violation of law 
        relating to an act of terrorism (as that term is 
        defined in section 3077 of title 18, United States 
        Code).

           *       *       *       *       *       *       *


                            Dissenting Views

    While we have long supported efforts to promote cooperation 
between civilians and law enforcement, H.R. 963, the ``See 
Something, Say Something Act of 2011,'' would actually 
undermine those efforts. H.R. 963 would provide immunity from 
civil liability for individuals who report suspicious 
activities that relate to terrorism and law enforcement 
officials who act on those reports. Based on the debate during 
the Committee markup, and the Majority's rejection of an 
amendment that would have ensured that racial profiling not be 
protected by this bill, we remain concerned that the bill's 
protections could extend to reports based on an individual's 
actual or perceived race, religion, or national origin. We are 
also concerned that H.R. 963 would permit an individual who had 
been the subject of a suit alleging racial profiling to seek 
attorneys' fees and costs from the plaintiff if the suit was 
dismissed as a result of the immunities provided under this 
bill, even if that suit had been brought in good faith.
    While proponents of H.R. 963 argue that this legislation is 
necessary to encourage private citizens and law enforcement 
officials to work cooperatively and take action against 
objectively suspicious acts that relate to terrorism, we 
believe that it would more likely have the effect of chilling 
the right of an individual who has been unlawfully subject to 
racial profiling to seek redress in court. As a result, H.R. 
963 could have the unintended consequence of encouraging racial 
profiling, thereby violating the constitutional rights of the 
profiled victims, and undermining bona fide law enforcement 
efforts.
    For these reasons, and those discussed below, we 
respectfully dissent.

                              I. OVERVIEW

    H.R. 963 grants immunity from civil liability to 
individuals who--in good faith and based on an objectively 
reasonable suspicion--report suspicious activity indicating 
that an individual may be engaging, or preparing to engage, in 
a violation of law relating to an act of terrorism as defined 
in 18 U.S.C. Sec. 3077.\1\ The bill also grants qualified 
immunity from civil liability to any authorized official\2\ who 
observes, or receives a report of, such activity and takes 
reasonable action in good faith to respond, consistent with 
applicable law in the relevant jurisdiction.\3\ The bill 
further provides that an authorized official not entitled to 
assert the defense of qualified immunity shall nonetheless be 
immune from civil liability, if that official takes reasonable 
action, in good faith, to respond to the reported activity.\4\ 
Any individual found to be immune from civil liability under 
this legislation would be entitled to recover reasonable costs 
and attorney fees.\5\
---------------------------------------------------------------------------
    \1\H.R. 963, Sec. 2(a), adding a new 6 U.S.C. Sec. 890A(a)(1). 18 
U.S.C. Sec. 3077 references 18 U.S.C. Sec. 2331, which defines 
``international terrorism'' as activities that:

  (A) involve violent acts or acts dangerous to human life that are a 
violation of the criminal laws of the United States or of any State, or 
that would be a criminal violation if committed within the jurisdiction 
of the United States or of any State;
  (B) appear to be intended--
    G  (i) to intimidate or coerce a civilian population;
    G  (ii) to influence the policy of a government by intimidation or 
coercion; or
    G  (iii) to affect the conduct of a government by mass destruction, 
assassination, or kidnaping; and
  (C) occur primarily outside the territorial jurisdiction of the 
United States, or transcend national boundaries in terms of the means 
by which they are accomplished, the persons they appear intended to 
intimidate or coerce, or the locale in which their perpetrators operate 
or seek asylum.

Section 2331 defines ``domestic terrorism'' as activities that:
  (A) involve acts dangerous to human life that are a violation of the 
criminal laws of the United States or of any State;
  (B) appear to be intended--
    G  (i) to intimidate or coerce a civilian population;
    G  (ii) to influence the policy of a government by intimidation or 
coercion; or
    G  (iii) to affect the conduct of a government by mass destruction, 
assassination, or kidnaping; and
  (C) occur primarily within the territorial jurisdiction of the United 
States.''
---------------------------------------------------------------------------
    \2\An ``authorized official'' is defined as ``any officer, 
employee, or agent of the Federal government with responsibility for 
preventing, protecting against, disrupting, or responding to a `covered 
activity;' or any Federal, State, or local law enforcement officer.'' 
H.R. 963, Sec. 2(a), adding a new 6 U.S.C. 890A(d)(1).
    \3\Id Sec. 890A(b)(10).
    \4\Id. Sec. 890A(a)(2) and (b)(1).
    \5\Id. Sec. 890A(c).
---------------------------------------------------------------------------
    Criminal justice experts report that there is inevitably an 
increase in tips from the public concerning suspicious activity 
following any high profile incident.\6\ In the case of the 
September 11th attacks, the expected increase in the number of 
these kinds of reports was exacerbated by media accounts of a 
traffic stop involving the hijackers and their attempts to 
blend in with the local minority community.\7\ The resulting 
belief that the tragedy might have been averted had someone 
simply reported suspicious activities prompted Congress to 
enact information sharing legislation, which in turn has led to 
the Suspicious Activity Reporting Initiative (SAR).\8\
---------------------------------------------------------------------------
    \6\See Mike German &Jay Stanley, Fusion Center Update, American 
Civil Liberties Union (June 2008), available at http://www.aclu.org/
files/pdfs/privacy/fusion_update_20080729.pdf (last visited: June 17, 
2011).
    \7\See Sanctioned Bias: Racial Profiling Since 9/11, American Civil 
Liberties Union (Feb. 2004), available at http://www.aclu.org/
FilesPDFs/racial%20profiling%20report.pdf (last visited: Sept. 6, 
2011).
    \8\This program is designed to centralize information sharing 
efforts between Federal state and local law enforcement agencies. See 
Overview of the Nationwide SAR Initiative, at http://nsi.ncirc.gov/
documents/NSI_Overview.pdf (last visited Sept. 6, 2011). For a 
discussion of the development and potentially discriminatory impact of 
the SAR initiative, see Thomas Cincotta, Platform for Prejudice, 
Political Research Associates (Mar. 2010), available at http://
www.publiceye.org/liberty/matrix/reports/sar_initiative/sar-full-
report.pdf (last visited: September 6, 2011).
---------------------------------------------------------------------------

                   II. CONCERNS WITH THE LEGISLATION

A. H.R. 963 Increases the Risk of Racial Profiling.
    Civil liberties advocates have been particularly critical 
of suspicious activity initiatives. In its testimony on the 
bill, the Rights Working Group observed that minorities have 
been disproportionately targeted in suspicious activity 
reports:

        Since 9/11, suspicion has often been reported based on 
        appearance rather than behavior. Among those reported 
        for ``suspicious activities,'' have been peaceful 
        groups, including anti-death penalty activists and 
        Amnesty International members. People have been yanked 
        off of airplanes, and others have found their face in 
        major newspapers such as the New York Times listed as 
        terrorism suspects--all because of reports of 
        suspicious activity. More often than not, the people 
        targeted by such reports were not engaged in any 
        illegal activity, and they were often Arab, Middle 
        Eastern, Muslim, South Asian or perceived to be so.\9\
---------------------------------------------------------------------------
    \9\See Something, Say Something Act of 2011: Hearing on H.R. 963 
Before the Subcomm. on the Constitution of the H. Comm. on the 
Judiciary, 112th Cong. (2011) (testimony of Margaret Huang, Executive 
Director, Rights Working Group).

    The proponents of this legislation seem to have missed the 
lessons learned by law enforcement agencies across the country 
that a focus on behavior, rather than perceived religion or 
ethnicity, is the most effective law enforcement strategy. In 
his testimony before the Subcommittee on the Constitution, Salt 
Lake City Police Chief Christopher Burbank observed that tips 
based on racial, religious or national origin disrupt the work 
of law enforcement authorities who still must expend 
significant resources to investigate such tips. Chief Burbank 
was particularly concerned that, in addition to sidetracking 
law enforcement with reports based on race or religion, racial 
profiling undermines successful efforts to enlist local 
communities in cooperative efforts with police. The Rights 
Working Group's testimony took the position that H.R. 963 ran 
---------------------------------------------------------------------------
the risk of emboldening bias-based behavior:

        H.R. 963 provides cover for those who would use race, 
        religion, ethnicity or national origin as a proxy for 
        criminal behavior, and offers no remedy to those who 
        are harmed by their actions. Rather than looking for 
        ways to immunize those who act improperly on vague and 
        unsubstantiated tips, this Committee's time would be 
        better spent looking for ways to effectively identify 
        criminal behavior and target law enforcement resources 
        accordingly.\10\
---------------------------------------------------------------------------
    \10\Id.

    Tips based on perceived race, religion, or national origin 
distract law enforcement from its core mission and violate the 
rights of individuals.\11\ Since September 11th, complaints 
about racial profiling in the Arab, Muslim and south-Asian 
communities have increased dramatically and have been the 
subject of hearings by this Subcommittee.\12\ Examples include 
the following:
---------------------------------------------------------------------------
    \11\Mike German & Jay Stanley, Fusion Center Update, American Civil 
Liberties Union (June 2008).
    \12\See, e.g., Racial Profiling and the Use of Suspect 
Classifications in Law Enforcement Policy: Hearing Before the Subcomm. 
on the Constitution, Civil Rights and Civil Liberties of the H. Comm. 
on the Judiciary, 111th Cong. (2010).

         LRepresentative Darrell Issa (R-CA), an Arab-
        American Member of Congress was prevented from boarding 
        a flight at Dulles International Airport while 
        traveling on official business, even after providing 
        his congressional identification.\13\
---------------------------------------------------------------------------
    \13\See Mark Sherman, Rep. Issa: I Was Profiling Victim, The 
Washington Post (Oct. 26, 2001) available at: http://
www.washingtonpost.com/wp-srv/aponline/20011026/aponline175
845_000.htm (last visited: September 7, 2011).

         LAn executive for Lucent Industries was 
        ejected from a flight in Boston after the United 
---------------------------------------------------------------------------
        Airlines crew refused to fly with him on board.

         LA Muslim staff person with the Judiciary 
        Committee was harassed by airline employees after 
        boarding and was asked to produce four pieces of 
        identification in addition to his congressional I.D.

    Incidents in which reports were based not on suspicious 
behavior, but on the perceived race, religion, or nationality 
of an individual, serve no legitimate law enforcement purpose. 
By further encouraging the targeting of innocent individuals 
based on race and ethnicity and diverting focus from rooting 
out those with malicious intentions, profiling can seriously 
impede these important public safety missions.
B. LH.R. 963 Would Have a Chilling Effect on the Right of Victims of 
        Racial Profiling to Seek Redress in Court.
    H.R. 963 allows any authorized official or other person 
found to be immune from civil liability under this section to 
recover from the plaintiff all reasonable costs and attorney 
fees.\14\ In contrast, the legislation does not provide for 
fees and costs for a successful plaintiff who has been the 
victim of profiling no matter how malicious the report. 
Representative Judy Chu (D-CA) offered an amendment to make 
clear that a report based on a person's race, religion, 
ethnicity, or national origin would not receive protection 
under the bill. This amendment was rejected by a vote of 4-16.
---------------------------------------------------------------------------
    \14\H.R. 963, Sec. 2(a), adding a new 6 U.S.C. 890A(c).
---------------------------------------------------------------------------
    Additionally, this measure has the strong potential to 
chill access to the courts for those individuals targeted by 
even the most malicious tips. Conversely, there is no similar 
penalty imposed on a defendant no matter how egregious the 
conduct or frivolous the assertion of immunity. Because 
numerous ordinary activities have been deemed potentially 
suspicious, ordinary citizens would effectively lose access to 
the courts for fear of financial ruin in the event of an 
adverse ruling.\15\ The losers would be those who are genuinely 
victims of profiling, but who could not afford the risk of 
losing on the question of immunity. Representative Bobby Scott 
(D-VA) offered an amendment to allow a defendant to recover 
fees and costs only if the plaintiff did not act in good faith. 
The amendment was rejected on a voice vote.
---------------------------------------------------------------------------
    \15\The Los Angeles Police Department list of SAR suspect actions 
includes: using binoculars or cameras; taking measurements; taking 
pictures or video footage and drawing diagrams or taking notes. See 
Jerome P. Bjelopera, Terrorism Information Sharing and the Nationwide 
Suspicious Activity Report Initiative: Background and Issues for 
Congress, Congressional Research Service, at 8 (June 10, 2001) 
available at: http://www.fas.org/sgp/crs/intel/R40901.pdf (last visited 
Sept. 6, 2011).
---------------------------------------------------------------------------
C. LH.R. 963 Would Expand the Reach of Existing Immunities and 
        Penalties.
    While H.R. 963 largely restates current law, it also 
expands the law in ways that are particularly troubling. In 
2007, Congress passed legislation that included similar 
immunity language, but confined that immunity to cases 
involving a ``suspicious transaction, activity, or occurrence 
that involves, or is directed against, a passenger 
transportation system or vehicle or its passengers.''\16\ That 
legislation also provided for payment by the plaintiff to the 
defendant of attorneys fees and costs if the case is dismissed 
on the basis of the immunities specified in the section.\17\ 
While the 2007 legislation was confined to reports of terrorist 
threats against the passenger transportation system, H.R. 963 
covers all reports about any suspected terrorist threat.
---------------------------------------------------------------------------
    \16\The ``Implementing Recommendations of the 9/11 Commission Act 
of 2007,'' Pub. L. No. 110-53, Sec. 1206; 121 Stat. 388 (2007), 
codified as 6 U.S.C. Sec. 1104.
    \17\Id. at Sec. 1104(c).
---------------------------------------------------------------------------
    H.R, 963 also fails to clarify what legal standard would be 
employed to determine if an individual's report was made ``in 
good faith and based on objectively reasonable suspicion.''\18\ 
The terms ``good faith'' and ``objectively reasonable 
suspicion'' are not defined in the bill. Federal statutes in 
any given area of law employ different legal standards in 
different contexts because there is no uniform guide to federal 
legal standards.\19\ Consequently, a party would have no way of 
knowing how the Court might apply the ``good faith'' and 
``objectively reasonable'' standards in determining whether a 
defendant was subject to immunity or qualified immunity. A 
plaintiff, therefore, would not be able to adequately assess 
the viability of his claim until court proceedings have begun.
---------------------------------------------------------------------------
    \18\If a court interprets the 6 U.S.C. Sec. 1104(a) immunity 
provision with respect to individuals, then such a decision may be 
useful in interpreting H.R. 963.
    \19\For example, federal criminal provisions include a varying 
array of mens rea standards, some of which are drawn from language in 
Supreme Court opinions, others which use new terms created by Congress, 
and still others which combine two or more phrases to create new 
standards. Similarly, multiple standards apply to industry 
requirements, agency discretion, and other issues throughout federal 
environmental statutes. As exemplified in those laws, Congress can 
create many standards to govern the scope of immunity for suspicious 
activity reporting.
---------------------------------------------------------------------------
D. LH.R. 963 Would Unnecessarily Trample on States' Rights by 
        Preempting State Tort Liability Laws.
    While respect for states' rights has become a rallying cry 
among many members of Congress, this blanket preemption of 
state tort law appears to have raised no such concerns among 
its proponents. As the Supreme Court has observed, ``[a]lthough 
the Tenth Amendment has been characterized as a `truism,' 
stating merely that `all is retained which has not been 
surrendered,' it is not without significance. The Amendment 
expressly declares the constitutional policy that Congress may 
not exercise power in a fashion that impairs the States' 
integrity or their ability to function effectively in a Federal 
system.''\20\ We do not take the position that this legislation 
necessarily transgresses the Tenth Amendment. Nevertheless, we 
would urge our colleagues who have made a habit of trumpeting 
it to consider carefully the extent to which this legislation 
sweeps aside generations of state tort law in the pursuit of a 
theory roundly rejected by experienced law enforcement, 
including the only law enforcement officer to testify at the 
Subcommittee's hearing.
---------------------------------------------------------------------------
    \20\Fry v. United States, 421 U.S. 542, 547 n.7 (1975) (citations 
omitted).
---------------------------------------------------------------------------

                            III. CONCLUSION

    H.R. 963 is a solution in search of a problem. The 
Committee has no record of a pattern of unfounded lawsuits 
against individuals who make good faith reports of suspicious 
activities to law enforcement. Nonetheless, H.R. 963 may end up 
promoting racial profiling, thereby violating the 
constitutional rights of those targeted individuals. It will 
also undermine, rather than support, efforts to promote greater 
cooperation between law enforcement and citizens.
    For these reasons we respectfully dissent.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Judy Chu.

                                  
