Why the Telecoms Shouldn't Get Immunity for Spying on Americans

House Democrats will soon propose to deny legal protection to phone companies that helped the National Security Agency wiretap Americans without warrants after 9/ll. This makes sense.

I'm old enough to remember J. Edgar Hoover’s FBI and Nixon’s CIA, and the Federal Intelligence Surveillance Act of 1978. But anyone who's even halfway sentient ought to know there's a Fourth Amendment to the Constitution. So you'd think that executives at the nation’s biggest telecoms -- AT&T, Verizon, and so on -- would be alert to the possibility that government might illegally snoop on Americans. Yet these executives didn’t blink an eye when the NSA came knocking. You want records of domestic phone calls? Sure, help yourself! Emails? Yeah, we got tons. They’re yours!

When word of this leaked out and the companies got sued by Americans who didn’t particularly like the idea of government rummaging through everything they said or wrote, the telecoms went to Congress and complained it wasn’t their fault. They deserved immunity from such lawsuits, they said, because they were only following orders.

Only following orders? What if the government told telecoms to use their technologies to spy on American bedrooms, or turn over our bank accounts, or our photographs, home videos, anything else we store on computers or transmit through cables or over the Internet? The "only following orders" excuse would make telecoms extensions of our spy agencies.

Corporate executives have a duty to disobey government orders when they have reason to believe those orders are illegal or unconstitutional -- and make the government go to court to get what it wants. The duty to refuse is especially important when it comes to the nation’s telecoms, whose technological reach is extending deeper and deeper into our private lives.

Sure, there’s a delicate balance between fighting terrorism and protecting civil liberties. But that’s for courts to decide – not spy agencies and not telecom executives. If in doubt, the telecoms could have gone to the special courts set up precisely to oversee this balance, and get a declaratory judgment. The House proposal would give federal courts special authority to hear classified evidence and decide whether the phone companies should be held liable.

The only way to keep pressure on telecoms to protect Americans, and not become agents of our spy agencies, is to continue to allow Americans to sue them for violating their legal rights.