FC: EFF's Cindy Cohn on why scuba divers shouldn't give in to FBI

[Declan McCullagh <declan () well com>]

[For details on PADI's we'll-give-in-to-police-demands stance, skip to the 
end of the message. I've forwarded it from Dave Farber's IP list. --Declan]

---

Date: Wed, 12 Jun 2002 17:11:51 -0700
To: declan () well com
From: Cindy Cohn <Cindy () eff org>
Subject: Fwd: release of members information

Hi Declan,

Here is the letter to PADI that I mentioned.

Cindy

> Date: Wed, 12 Jun 2002 13:38:46 -0700
> To: jeffn () padi com
> From: Cindy Cohn <Cindy () eff org>
> Subject: release of members information
> Cc: Lee Tien <tien () well com>
>
> Dear Jeff,
>
> I am a PADI diver and the Legal Director of the Electronic Frontier 
> Foundation.  I am extremely knowledgeable about both the legal and 
> regulatory environment surrounding the post 9/11 terrorism 
> investigations.  I wrote one of the first publicly available analyses of 
> the Act as it relates to surveillance and have served as a regular 
> commentator in the media on the issue.  You can see my analysis of the USA 
> Patriot Act at 
> http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html
>
> As you may know, one of the cornerstones of the U.S. Constitutional 
> protections for its citizens is the requirement that law enforcement have 
> some basis for investigating Americans.  This idea, often called the 
> prevention of "fishing expeditions" by law enforcement, is rooted in the 
> 4th Amendment, but clearly visible throughout U.S. caselaw both in wartime 
> and in peace.  Nothing about the 9/11 attacks changed this bedrock 
> principle; neither Congress nor the Courts have authorized its abandonment.
>
> Yet without giving me or any other of your customers a chance to protect 
> ourselves, you participated willingly in a fishing expedition.  There is 
> no way that the FBI had any defensible basis to believe that *all* PADI 
> divers were potential terrorists.  They apparently made no efforts to 
> narrow their requests to reflect the folks who they really suspect from 
> the rest of us.
>
> I have also reviewed the letter you sent to Mikki Barry stating that you 
> did so in order to avoid being served by a subpoena and that you received 
> some sort of "assurances" in response from the FBI.  Unfortunately, this 
> only increases my concern.  Requiring law enforcement to go through 
> processes such as issuance of subpenas and retrieving the appropriate 
> court orders is our only real protection against fishing expeditions and 
> other law enforcement abuses.  I suspect that had you required them to 
> issue a subpena it would have itself been much narrower than what you 
> voluntarily handed over, since such things must usually be approved by 
> those higher up in the FBI and they face the prospect of having to defend 
> the document before a judge.
>
> Even if such a broad subpoena had been issued, you could have taken 
> further steps to protect your customers.  First, you could have notified 
> your customers (including me) that the information was being sought, thus 
> allowing me and thousands of others the opportunity to seek court 
> protection for our private information. I would have gladly done so.
>
> Alternately, you could have sought court review of the subpena 
> yourself.  I have no doubt that the FBI would have narrowed its request 
> significantly, either through court order or voluntarily if faced with the 
> prospect of defending this to the judge.
> As for the cost of this, had you contacted EFF or any of the other civil 
> liberties organizations, I'm quite confident that we would have been 
> willing to represent you for free in this matter or locate other free 
> counsel for you.
>
> Instead, you participated in creating an FBI file on me and all the rest 
> of your customers, loyal Americans who have done nothing wrong and who now 
> face the process of increased surveillance by virtue of the fact that we 
> did business with you. As for the "assurances" you received from the FBI 
> about the use of our information, what steps did you take to make those 
> enforceable?  If they misuse that information to launch broader 
> surveillance about me unrelated to terrorism, what recourse do I 
> have?  What recourse do you have?
>
> And how will you know if they have kept their assurances?  What steps did 
> you take to require the FBI to inform you about how they use the 
> information?  Did they give you an enforceable description of the scope 
> counterterrorism investigation?  Given the USA Patriot Act's requirement 
> of increased information sharing between the FBI and the national security 
> offices, I have great skepticism that the information will only remain 
> with the FBI or that the information will be completely returned to PADI 
> in a timely manner.
>
> I think you have made a grave mistake, the kind that you will become more 
> and more embarrased about as time goes by.
> I'm happy to discuss this matter with you further, if you wish.
>
> Cindy
>
> ************************************************
> Cindy A. Cohn                   Cindy () eff org
> Legal Director                    www.eff.org
> Electronic Frontier Foundation
> 454 Shotwell Street
> San Francisco, CA 94110
> Tel:  (415)436-9333 x 108
> Fax: (415) 436-9993

************************************************
Cindy A. Cohn                   Cindy () eff org
Legal Director                    www.eff.org
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Tel:  (415)436-9333 x 108
Fax: (415) 436-9993

---

From: Mikki Barry <ooblick () netpolicy com>
Date: Tue, 11 Jun 2002 22:19:18 -0400
To: David Farber <dave () farber net>
Subject: Latest target - scuba divers

Both PADI and NAUI, the two largest scuba diving certification agencies in
the world, have turned over student information from the past 3 years to the
FBI.  If you're a diver, you likely now have a little file at the FBI.


------ Forwarded Message
From: "Jeff Nadler" <jeffn () padi com>
Date: Tue, 11 Jun 2002 17:54:54 -0700
To: "Mikki Barry" <ooblick () netpolicy com>
Subject: RE: I am very disappointed in PADI

Dear Mikki,

Thank you for contacting me regarding the FBI investigation. We share your
personal liberties concerns and the privacy issue was an important
consideration in addressing the FBI's request. At the same time, we were
aware of at least one dive store owner who had told an FBI agent visiting
his store that he was too busy to spend time compiling his records; the
agent returned within several hours with a subpoena for the records. As you
probably know, if our certification records were subpoenaed, we would be
unable to demand any restrictions on the use of that information.

Faced with that scenario, we decided the best approach was to cooperate, as
long as the FBI agreed to certain conditions. Prior to our complying with
their request, we received the FBI's agreement that: 1) this information is
the proprietary property of PADI and its members; 2) it was provided to the
FBI Counterterrorism Division for the express and single purpose of
investigation into possible terrorist activities using scuba; 3) the
information would not be used for any other purpose, and: once the
Counterterrorism Division had completed its investigation, the information
would be returned to PADI.

I hope that this explanation demonstrates that we tried to do our very best
to protect the privacy of PADI divers, in light of the very real likelihood
of being subpoenaed for this information if we did not cooperate.

Sincerely,
Jeff Nadler
PADI Vice President, Industry & Government Relations

-----Original Message-----
From: Mikki Barry [mailto:ooblick () netpolicy com]
Sent: 11 June, 2002 3:46 PM
To: Jeff Nadler
Subject: I am very disappointed in PADI


I likely cannot express how truly disappointed I am in PADI that you have
decided upon yourselves to turn private information regarding dive student
files and other personal information over to the FBI.  This overbroad and
invasive search into our privacy is unwarranted, and not backed by the
checks and balances that our Constitution guarantees - namely a court order
or subpoena.

I expected more from PADI in protecting the privacy of your members and your
students.  Our civil liberties have been sorely violated.





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