We now know that communication service providers turned over our private calls, emails and records to the government in the absence of a court order or other lawful requirement to do so. This violates both criminal and civil laws. Currently, citizens and consumers are trying to advance their rights in court, some seeking damages, and some seeking a simple declaration that the activity was illegal and a court order stopping it from happening in the future.

Killing all the pending cases will have two effects. First, it deprives consumers the opportunity to assert their own privacy rights before a neutral arbiter, which had been statutorily guaranteed since 1978. The Foreign Intelligence Surveillance Act provides a civil cause of actions so that Americans can enforce their rights when the communications companies and the government infringe on them. Robbing them of this opportunity through legislation not only frustrates the pending cases, but undercuts the accountability structure in the statute, which will only encourage law breaking in the future.

Second, it serves to bury government misconduct. Granting retroactive immunity shields not only the telecommunications industry, but the government actors that induced them to break the law in the first place. Despite numerous subpoenas, Congress has been completely frustrated in its attempts to discover what the Administration has done with our private information. These cases may be the last chance for citizens to actually determine who ordered the interception of their phone calls and how those intercepted communications have been used against them.