Lawsuits: Does this amendment give too much protection*

The threat of lawsuits for reportage of suspicious activities of course can only have a negative affect on the public's effort at diligence:

H.R.1401

Rail and Public Transportation Security Act of 2007 (Engrossed as Agreed to or Passed by House)

SEC. 137. IMMUNITY FOR REPORTING SUSPICIOUS ACTIVITIES AND MITIGATING TERRORIST THREATS RELATING TO TRANSPORTATION SECURITY.

(a) Immunity for Reporting Suspicious Behavior- Any person who makes or causes to be made a voluntary disclosure of any suspicious transaction, activity or occurrence indicating that an individual may be engaging or preparing to engage in a matter described in subsection
(b) to any employee or agent of the Department of Homeland Security, the Department of Transportation, the Department of Justice, any Federal, State, or local law enforcement officer, any transportation security officer, or to any employee or agent of a transportation system shall be immune from civil liability to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, for such disclosure.

(b) Covered Disclosures- The matter referred to in subsection (a) is a possible violation or attempted violation of law or regulation relating--

(1) to a threat to transportation systems or passenger safety or security; or

(2) to an act of terrorism, as defined in section 3077 of title 18, United States Code, that involves or is directed against transportation systems or passengers.

(c) Immunity for Mitigation of Threats- Any person, including an owner, operator or employee of a transportation system, who takes reasonable action to mitigate a suspicious matter described in subsection (b) shall be immune from civil liability to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, for such action.

(d) Limitation on Application- Subsection (a) shall not apply to a statement or disclosure by a person that, at the time it is made, is known by the person to be false.

(e) Attorney Fees and Costs- If a person is named as a defendant in a civil lawsuit for making voluntary disclosures of any suspicious transaction or taking actions to mitigate a suspicious matter described in subsection (b), and the person is found to be immune from civil liability under this section, the person shall be entitled to recover from the plaintiff all reasonable costs and attorney's fees as allowed by the court.

(f) Retroactive Application- This section shall apply to activities and claims occurring on or after November 20, 2006.

But, even acknowledging the limitation mentioned in part (d), the above amendment goes too far. The threat of lawsuits is an unfortunate negative consequence for any reporting of suspicious activity of the kind covered in the amendment. It's not always fairly pursued, but the right of persons to seek redress, whether against government persons or others, should not be legally impeded solely on the basis of preventing a hypothetical risk.

Somethings which are confusing about part (d) (or however lawyers would refer to it) is how such a determination would be established, and when. Part (e) indicates, at least to me, such determinations can be made before the fact of a lawsuit's resolution. I would think, while judges have some power to dismiss cases, the issue of determining if the defendents knowingly reported falsely is something to be dertimined best by the juries of their trials, assuming any such case has the merit to reach the stage of jury deliberation.

While it can be said the amendment serves the greater public good, in the name of national security, the right of recourse through civil courts should not be limited to a single standard, as is apparently stated in part (e). The amendment is too broad, with too narrow of an exception.

*Originally created on March 30, 2007. I'm not completely confidant I read the amendment correctly, so apologies from me for any misunderstandings in my commentary on it.