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Developing future privacy policies requires a frank, thorough look at past actions.

January 22, 2008

In the fight against international terrorism, it's important for Congress to look forward and develop rules for surveillance that match up with the latest terrorist technologies and techniques.

But it's also important for our justice system to look back on the last five years of domestic spying and determine whether there have been violations of our laws.

Unfortunately, a bill before the U.S. Senate this week would foreclose any such inquiry. Telecommunications companies that may have participated in warrantless wiretap operations with the National Security Agency would be granted retroactive immunity from lawsuits filed by people who feel their privacy was violated.

This protection is unnecessary and would send us into the policy debate blind. If companies or the government violated privacy laws, we should know that. If the line between what's allowed and what's forbidden is in the wrong place, we should know that too.

With important questions like that still outstanding, members of the Senate should strip the immunity provision from the bill.

Since 1978, the surveillance of foreign agents has been governed by a secret court, created by the Foreign Intelligence Surveillance Act.

Using this court, intelligence agencies could get warrants to wiretap and spy on suspects in the United States without any public process that would tip the targets off to the operation. No warrants were needed for overseas surveillance.

Shortly after the terrorist attacks of Sept. 11, 2001, the Bush administration began to conduct domestic operations without seeking warrants.

After the program was exposed in the press, the administration pushed Congress to make its actions legal in the future. It has also sought to close off any judicial inquiry.

Supporters of immunity say the companies were just doing their patriotic duty. In some cases, they may have been led to believe by the government that they were acting within the bounds of the law.

Either of those cases makes a good defense but a poor argument for immunity. If it was the government that transgressed instead of the companies, the public should know that.

Future administrations should not think they can violate the law and then retroactively close off an inquiry.

That's why it would be a mistake to look forward and make new surveillance laws without also looking back.