NSA Snooping and the Conservative Precautionary Principle

Conservatives use the precautionary principle to justify domestic spying just as the left uses it to justify environmentalism. Neither is convincing.
Trevor Burrus
Research Fellow, Constitutional Studies

Trevor Burrus is a research fellow at the Cato Institute’s Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and political philosophy, and legal history. His work has appeared in the Vermont Law Review, the Syracuse Law Review, and the Jurist, as well as the Washington Times, Huffington Post, and the Daily Caller. He holds a BA in Philosophy from the University of Colorado at Boulder and a JD from the University of Denver Sturm College of Law.

Recent revelations about the NSA’s broad surveillance of Americans’ phone records has some invoking the terrifying surveillance state of Orwell’s 1984. Others, from both parties, are justifying the program based on countering terrorist attacks. A tiny loss of privacy is a small price to pay to avoid the infinite costs of a nuclear weapon being set‐​off in Central Park, they argue.

This is the conservative version of the precautionary principle. The left often uses the precautionary principle to justify policies that fight global warming, arguing that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost‐​effective measures to prevent environmental degradation.” In other words, the plausibility of substantial harm puts the burden of proof on those who choose not to act to curtail that harm.

But I prefer to call it “apocalyptic consequentialism.” As I’ve written before, many problems in world come from the fact that people like different things. Sometimes, when confronted with someone who doesn’t adequately, in our view, value something we value, we turn to apocalyptic consequentialism to try to make our point. We say something like, “Oh, you don’t like trees? Well, that’s fine until all the trees are cut down and we go through an environmental catastrophe. When that happens, I’m sure you’ll wish you valued trees a little more.”

Similarly, conservatives will invoke apocalyptic consequentialism when it comes to the war on terror: “Oh, you don’t like the government snooping on your phone calls? You like privacy for its own sake? Well, that’s fine until a nuclear bomb is placed under Central Park. I’m sure you’ll wish you valued privacy a little less when that day comes.”

Apocalyptic consequentialism is pervasive in modern political rhetoric. Modern environmentalism so resembles a religion because it tends toward apocalyptic consequentialism. Nearly every religion believes the world is run by false values and that one day there will be a comeuppance in retribution for those false values. Modern environmentalism invokes the sins of “materialism,” “globalization,” and “consumption” as false values, and ultimate environmental catastrophe as the “rapture” that will demonstrate of how false our values are.

Apocalyptic consequentialism is used to eradicate the distinction between private and public acts, or to eradicate privacy altogether. Your choice of light bulbs, toilet volume, sexual partners, or phone calls are no longer private if they will result in apocalyptic consequences, be it environmental catastrophe, a replay of Sodom and Gomorrah, or a nuclear bomb in Central Park.

In the 17th Century, French philosopher Blaise Pascal invoked something like apocalyptic consequentialism to argue for belief in God. In his famous “Pascal’s Wager” he asked people to compare what they have to gain by believing in God to what they have to lose by not believing in God. The rewards for believing in God might be infinite, whereas the losses are trivial. The argument is sometimes reversed to focus on hell and the possibility of infinite losses for not believing. Either way, the logic is the same. If you believe in God and he doesn’t exist, well, that was the right gambit in the face of the possibility of infinite gains and infinite losses.

This argument is horrible. First, it is not really an argument for believing in God; rather, it is an argument for believing in believing in God. Second, and more importantly, it is an argument for taking any action that has a non‐​zero chance of avoiding infinite harm. There may, after all, be a god who infinitely punishes those who shave their eyebrows. Similarly, there may be a god who infinitely punishes those who keep their eyebrows. What is one to do in the face of such contradictory choices?

The answer, of course, is to look at the actual probabilities of such gods existing, thus putting us back at square one–that is, are there good reasons for believing in a particular god or a particular claim for infinite rewards or losses?

Like Pascal’s Wager, political apocalyptic consequentialists hope to avoid the debate over probabilities and move straight to action. Environmentalists roll their eyes when the probabilities of global warming are questioned in the slightest: “Whatever the probability,” they say, “the consequences of it happening are so awful that we must do something now!” Those who question government environmental action have “forgotten when the Cuyahoga river caught fire.” Similarly, conservatives don’t want to hear anything about the probabilities of nuclear weapons being placed in Central Park (very very low, from what I understand) or the consequences of a dirty bomb (bad, but not that bad). “Whatever the probabilities, the consequences of it happening are so awful that we must do something now!” Those who question government snooping have “forgotten 9–11.”

But those who question government snooping have not forgotten 9–11, we’re simply remembering everything we lost that day.