"John Doe" provision: The final language

Audrey Hudson and the Wash Times have got it, but I didn’t want to bury it at the end of the other “John Doe” post so here you go:

The outstanding issues that were resolved include stripping the retroactive language that would have allowed the lawsuit to proceed against the “John Doe” passengers; restricting the reporting to terrorism and not other criminal activity, and limiting it to federal lawsuits.

If passed, the law will become retroactive from Oct. 1, 2006.

“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,” the conference language says.

Noam Askew sent me a link to CQ this morning which claims the language in the new draft was derived from H.R. 2291, a bill introduced by the GOP and co-sponsored by Peter King in May. Here’s the pertinent part. What’s different?

Any person who, in good faith, makes, or causes to be made, a voluntary disclosure of any suspicious transaction, activity, or occurrence … to any employee or agent of the Department of Homeland Security, the Department of Transportation, or the Department of Justice, any Federal, State, or local law enforcement officer, any transportation security officer, or any employee or agent of a transportation system shall be immune from civil liability to any person for such disclosure under any Federal, State, or local law.

Answer: The new language requires that there be an “objectively reasonable suspicion” for the immunity to apply. That’s the GOP’s concession to the concerns of Bennie Thompson and the Democrats that people would use their “John Doe” immunity to go around making all sorts of paranoid claims. In essence, it leaves things in the hands of the jury: if a passenger is sued for making a report and the jury decides that their suspicion was reasonable, the passenger is immune. If not, no immunity. It’s not foolproof, but it’s probably the best they could have done and King seem pretty pleased with it. If you’re going to drop a dime on a suspected jihadi, though, try not to do it in a blue state.

Update: Ace thinks they should have left well enough alone with the subjective standard, i.e., good faith.

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