Most of us try to balance civil liberties and national security interests when figuring out where we stand on intelligence surveillance. But a different balancing act is required on the issue of immunity for telecom companies that cooperated with surveillance efforts.

I’m not sure where I stand. On the one hand, when we share our personal information within a contractual relationship that defines how that information is used, we should be able to expect to stay within those limits, short of a subpoena. There are federal privacy laws that protect that expectation.

On the other hand, when the government, with its authority (and its monopoly on the legal use of force) asks you (a private company) for certain information, ostensibly acting under specific legislative authority, do you really think you are free to refuse? What if the government certified to you in writing that it was acting within its legal powers?

As a lawyer, my first instinct would be to see the statutory text to find the answer. But my VERY close second thought is this: unlike in scholarly disciplines, the “answer” in the law is decided ultimately by authority. Reason, analysis, principle, every intellectual tool goes into making an ARGUMENT for the right answer (and reasonable minds will differ on what that is). But when an authoritative conclusion is reached, whether by fiat or, hopefully, by a principled and good faith consideration, that conclusion IS the law (at least for the time being and for most practical purposes).

The legality of the governments’ actions under FISA are still being hotly debated among lawmakers and legal scholars in hindsight. The courts haven’t weighed in substantively. So could we really expect the telecom companies, even with their sophisticated legal teams, to make the “correct” judgment on what their obligations might have been? Are private individuals and companies competent (or even legally entitled) to question an executive order based on their own understanding of the statutory authority? Based on their own understanding of the constitutionality of the statute itself?

To the extent an executive order was constitutionally infirm, could companies really be REQUIRED to object on that basis? There may be a moral imperative for civil disobedience, but can there be a legal mandate for it?

Yet, if you immunize private actors from private liability arising from their part in an illegal government operation, where does that leave us on the slippery slope to government-backed cartels or future outsourcing of all government’s dirty work in creative ways we haven’t yet imagined? What’s the remedy for those harmed by the illegal act? Is it even constitutional for Congress to preempt judicial hearings on a whole class of cases?