As Congress debates changes to the Foreign Intelligence Surveillance Act, it would do well to ensure that no harm is done. Any change of law should reaffirm that the federal government alone is responsible for its actions under FISA. Private corporations, including even the largest of corporations, such as AT&T and Verizon, are not liable for the decisions of the federal government. The threat to America from foreign intelligence is real. Those who would harm us gather blueprints of our buildings, watch our comings and goings, monitor our Internet activity, and plot our demise. These nefarious acts take place both in America and abroad. For decades under FISA and other laws, our government has not passively waited for the success of our enemies. Our government has detected many enemies, sought them out, hounded them and, when possible, incapacitated them. We in the public know all too well when our government’s efforts under FISA have failed; we will likely never know how often they have succeeded.

For all of its power, our government does not act alone under FISA. It asks and receives the aid of individual citizens, community groups, other governments, and private corporations. Sometimes, over the past several decades, our government has gone to court for search warrants, court orders, and other forms of court approval for its actions. Sometimes it has not. But the actions taken under FISA are unambiguously planned and controlled by the federal government. Only the federal government can exercise FISA. The federal government, and no one else, is responsible for those actions: for their success, for their failure, for their lawfulness, and for their unintended consequences.

When a federal agent flashes a badge and asks for assistance under FISA, some will readily cooperate; others will seek advice of counsel and still others will refuse to cooperate under any circumstances. Cooperation is born not of a sense of profit or malice but of civic duty. For decades, cooperation has been the norm.

But the current debate in Congress over FISA may change that. Some in Congress want private parties, particularly deep-pocketed corporations, to be liable for the excesses and mistakes of the federal government under FISA. This outcome is obviously wrong for several reasons.

By shifting liability away from the federal government for its actions, the federal government is emboldened to exceed its authority. A reasonable government official need not worry about exceeding legal authority if a private entity will be held liable.

The historical incentive of private parties to cooperate with the federal government will be shattered. If private parties are liable for the government’s misdeeds, private parties will rationally shun the government.

Some in Congress see a meaningful distinction between prospective and retrospective liability protection under FISA. They are wrong. Businesses cooperating under FISA 10 and five years ago believed they had ironclad guarantees of liability protection from the government. Today, many of those businesses have been sued for the very act of cooperating with the federal government in the past. If they remain in court today, the message to all of industry with respect to FISA is clear: Never trust the federal government in the future.

No one should be deluded into believing that liability for past cooperation with the federal government under FISA will be limited to a handful of corporations such as AT&T and Verizon. Even corporations that believe they refused to cooperate with the federal government under FISA in the past are being sued in federal court.

The FISA debate in Congress is full of ironies. In the name of civil liberty, some in Congress would impose liability on corporations that neither organize nor control alleged harmful activity. In the name of civil liberty, some in Congress seek to hold businesses liable for the mistakes of the state. Terrorists succeed not because they are strong but because we are weak. When we are clear that our government will detect, attack, and destroy terrorists, they lose. When we are not clear, they win. When we are clear that we are a nation based on moral principles, the rule of law, and civil liberties, we win. When we hold private parties responsible for the mistakes of government, we lose.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He is organizing a seminar series at the Hudson Institute. He can be reached at hfr@furchtgott-roth.com.