A Modern Pascal's Wager for Mass Electronic Surveillance

Debates about the moral permissibility of mass electronic surveillance often turn on whether consequentialist considerations legitimately trump relevant deontological rights and principles. In order to establish such overriding consequences, many proponents of mass surveillance employ a modern analogue of Pascal’s wager: they contend that the (negative) consequences of no surveillance are so severe that any probability of such outcomes legitimates the abrogation of the relevant rights. In this paper, I briefly review Pascal’s original wager about whether to live a pious life, including two classes of objections that were almost immediately leveled against his argument. I then show that analogues of those objections apply straightforwardly to the modern versions of Pascal’s wager. Mass electronic surveillance might be ethically permissible or even obligatory in some circumstances, but the details matter in ways that are systematically ignored or assumed away in a Pascal’s wager-type argument. Careful consideration of the complexities of our modern situation is required to decide whether consequentialist considerations override deontological principles in this domain. A modern Pascal’s wager for mass electronic surveillance Recent disclosures and leaks have revealed that the public, both in the United States and internationally, are subject to some degree of mass electronic surveillance. Much of the resulting debate has focused on exactly who is performing the surveillance (private companies, government agencies, or a partnership between the two), what information is being recorded (message metadata, message content, actual sound or image files, or more), and numerous legal intricacies involving these activities (e.g., exactly what the National Security Agency is legally permitted to collect or analyze). In this paper, I simply take for granted that some type of large-scale data collection is occurring, and focus instead on the ethical justification of these activities, without worrying about legal details of exactly who can collect or analyze what communications data. Public debates about the ethical or moral legitimacy of mass surveillance are typically framed in in the language of deontology versus consequentialism. Opponents of such surveillance largely talk in terms of rights that are relatively inviolable, such as the right to privacy of communications, the right to autonomy and self-determination, or the right to be a member of a well-functioning civil society. Proponents of such surveillance instead focus on talk of consequences, such as the harms that might befall society if nefarious plans were consummated, the relative lack of harms due to mass surveillance on innocent citizens, or the deterrence benefits yielded by public knowledge of the 1 E.g., Leslie Cauley, “NSA Has Massive Database of Americans' Phone Calls,” USA Today, May 11, 2006; Barton Gellman and Ashkan Soltani, “NSA Collects Millions of E-Mail Address Books Globally,” The Washington Post, October 14, 2013. 2 Marie-Helen Maras, “The Social Consequences of a Mass Surveillance Measure: What Happens When We Become the 'Others'?,” International Journal of Law, Crime and Justice 40 (2012): 65–81; Alan Rubel, “The Particularized Judgment Account of Privacy,” Res Publica 17, no. 3 (August 2011): 275– 90; David Wright et al., “Sorting Out Smart Surveillance,” Computer Law & Security Review 26, no. 4 (July 2010): 343–54. mass electronic surveillance apparatus. This deep mismatch between the rhetoric of the two sides— one using deontological language, the other consequentialist—translates directly into a theoretical challenge in resolving the disagreement. If both sides agreed, for example, that the ethical justification of mass surveillance depended on only its consequences, then we could “just” calculate the different costs and benefits (though that would presumably be exceptionally difficult). Instead, we have two qualitatively different, potentially incommensurable types of criteria that we must somehow reconcile in order to advance the debate beyond mere shouting. There is relatively widespread agreement that most deontological principles can ultimately be overridden by consequentialist concerns, if the consequences are sufficiently severe. The moral legitimacy of the proverbial choice to “kill one to save a billion” reveals that the maxim not to kill an innocent is not inviolable. Of course, consequentialist considerations do not necessarily make it right to violate the deontological principle, but they may make it permissible (e.g., if we face a moral dilemma in which there is no right choice). Thus, one way to dissolve the impasse over mass surveillance is for the consequentialist to argue that not engaging in large-scale information collection would result in such negative consequences that it is permissible, perhaps even obligatory, to violate the relevant rights and principles. Again, such an argument does not show that it is morally right to engage in mass surveillance, but the consequentialist need only contend that we are trapped in a moral dilemma for which no choice will be fully morally acceptable. It is difficult, however, for the proponent to give such an argument, as many of the relevant negative consequences—both their disutility and their probabilities—have thankfully not been observed. One can note activities that have been stopped, such as various terrorist plots, but this information is rarely sufficient to know 3 Jack Goldsmith, “We Need an Invasive NSA,” New Republic, October 10, 2013; Katerina Hadjimatheou, “The Relative Moral Risks of Untargeted and Targeted Surveillance,” Ethical Theory and Moral Practice, August 2013; Michelle Van Cleave, “What It Takes: in Defense of the NSA,” World Affairs, November/December 2013; White House Office of the Press Secretary, “Remarks by the President on Review of Signals Intelligence,” January 17, 2014. what would have probabilistically happened if the activities had not been blocked. Instead, the dominant consequentialist move has been to appeal to an argument that I suggest is structurally similar to Pascal’s famous wager about the existence of God. Blaise Pascal was a 17 century French mathematician who made significant contributions to physics, geometry, early notions of computation, and probability theory. He also experienced an intense religious experience at age 31, after which he devoted much of his remaining eight years to writings on philosophy and theology, particularly the nature and justification of belief in God. Pascal believed that one could not simply choose to believe in God; such a belief is not, he thought, under direct, voluntary control. One could, however, choose to live a pious life by abstaining from sin, attending church, and so forth, and Pascal believed that such behaviors would lead (with high probability) to a sincere belief in God’s existence. The question thus naturally arises: ought a nonbeliever choose to pursue a pious life? Pascal argued that the non-believer should do so, using essentially decision-theoretic considerations. At a high level, there were (for Pascal) two possible worlds—God exists or God does not exist—and two possible actions by the decision-maker—lead a pious life, or lead a sinful one. He then argued that the outcomes for the four different world-action possibilities had a specific structure, which we can represent as a payoff or utility matrix: God exists God does not exist Pious life +∞ – C = +∞ L – C