President Obama has announced his desire to restrict what information the National Security Agency can collect without approval of the Foreign Intelligence Surveillance Court. There’s a lesson here about the Precautionary Principle.
The Precautionary Principle is the widely held notion that uncertainty about risk ought not be used as a barrier to making decisions to reduce or avoid it. Current NSA surveillance policy was founded on the belief that the US should act to preempt acts of terrorism, not wait until they occur and try to prosecute perpetrators. This requires taking action despite uncertainty, which is the essence of the Precautionary Principle.
Critics of the NSA program object for a number of reasons, but what most of these reasons have in common is they want surveillance policy to be precautionary with respect to something else — most notably, individual privacy. Indeed, being precautionary with respect to terrorism necessarily leads us to be anti-precautionary (i.e., taking risks) with respect to privacy.
President Obama’s establishment of a “red line” for taking action in the Syrian conflict also was a national security application of the Precautionary Principle. He was roundly criticized for his failure to take action as promised when the Syrian government was caught using chemical weapons, thus crossing his red line. While it is possible that the president was bluffing, insincere or dishonest when he announced the red line, it is not necessary to draw any of these inferences to explain his decision. All that is required is for him to have concluded that the risks associated with his threat were intolerable. These risks always were present, and while it is possible that the passage of time made them greater, it is also possible that they were not recognized when he announced the red line threat. This also is characteristic of the Precautionary Principle. Whatever risk one is inclined to be precautionary about is more salient than the risks that being precautionary will exacerbate.
President Obama’s speech announcing his desired change in surveillance policy includes text that appears to recognize that a surveillance policy that is precautionary with respect to terrorism is anti-precautionary respect to other risks, in this case “the risk of government overreach” and “enhanced interrogation techniques that [in his opinion] contradicted our values”:
[I]n our rush to respond to a very real and novel set of threats, the risk of government overreach — the possibility that we lose some of our core liberties in pursuit of security — also became more pronounced. We saw, in the immediate aftermath of 9/11, our government engaged in enhanced interrogation techniques that contradicted our values.
The point is not to take sides with respect to the substantive merits of alternative surveillance and interrogation policies. Rather, the point is to highlight a fundamental inconsistency in the Precautionary Principle. Some people want surveillance (or interrogation) policy to be precautionary with respect to terrorism, while others want it to be precautionary with respect to other values. These conflicting policy preferences can be compromised, in the normal give-and-take of politics, but they cannot be accomplished simultaneously.
Being precautionary with respect to terrorism means taking risks with respect to privacy. Being precautionary with respect to privacy means taking risks with respect to terrorism. There is no way around this trade-off.