[Commentary] In environmental policy, the Precautionary Principle means we should take aggressive action to avoid risks, even if we don’t know that those risks will come to fruition. But there is a serious problem with the Precautionary Principle, which is that risks are on all sides of social situations. The point is general. Whenever we engage in regulation, we are likely to impose costs. Increases in costs can create risks, including potentially catastrophic ones. In surveillance, It is tempting to adopt some version of the Precautionary Principle on the ground that it is important to counteract serious threats to the nation, including terrorist attacks, and surveillance can be helpful, even indispensable. Surveillance creates risks to public trust, personal privacy and individual liberty. If government holds a great deal of information, there is at least a risk of abuse -- if not now or soon, potentially in the future. And if government is engaged in extensive surveillance, there is a risk of a chilling effect on free discussion, on journalists and on journalists’ sources. For Congress and the president, however, the task is to manage a wide assortment of social risks, with careful attention to the likely consequences (including both costs and benefits). The operating principle involves risk management. The Risk Management Principle doesn’t exactly have a nice ring to it, but it is the right foundation for public policy -- whether the question involves environmental protection or national security.
[Cass Sunstein was President’s Review Group on Intelligence and Communications Technologies. He was the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration and he is currently the Robert Walmsley University Professor and Felix Frankfurter Professor of Law at Harvard Law School.]
