A Responsum Regarding the Right to Privacy Responsa in a Moment: Volume 1, Issue No. 4, December 2006

Hoshen Mishpat 154: 3, 7

This responsum began as part of a lengthy paper entitled “A Halakhic Approach to the Information Superhighway” which was delivered at the Whizin International Symposium on Technology and Ethics held at the University of Judaism in Los Angeles in February 1995. It was subsequently published in Conservative Judaism 48/3 (Spring 1996), pp.10-13 and has been revised for this column.

Question: It is common practice today for one company to sell the vital statistics of its clients to another company. It is also accepted that organizations – including rabbinic and philanthropic organizations – sell or give their email and mailing address lists to other organizations. Computer software known as “spyware” frequently enters home and business computers and collects personal information about users without their informed consent. This information is then used for future advertising and marketing purposes. Finally, Caller ID allows a company receiving a call to see the caller’s phone number on a screen. As a result, companies which receive orders via 800 numbers then sell the customer’s phone and credit card numbers to other companies. What is the halakhic attitude towards these practices?

Responsum: At first glance, these questions seem trivial. What does it matter if someone distributes my vital statistics and as a result I receive junk mail and junk phone calls? Who does it harm? But on second thought, these practices symbolize a much more serious phenomenon – the inability of modern man to maintain privacy and confidentiality. We live in an age of lack of privacy. There are many newspapers and “entertainment” programs devoted entirely to gossip and slander. Photographers and cameramen invade funerals and photograph the anguished cries of bereaved families. Our vital statistics and medical records are recorded on computers which can be invaded without too much effort. Through the Internet, one can break into the private computers of millions of individuals and companies.

Finally, eleven years ago we witnessed what was probably the greatest show trial in the history of mankind. A poll taken in February 1995 showed that 82% of the population of the United States planned to follow the O. J. Simpson trial, along with millions of people around the world (Newsweek , February 13, 1995, p. 17). Proponents of this massive invasion of privacy cited the “public’s right to know”. Yet there is no such “right” in American or Jewish law. On the contrary, as we shall see below, in Judaism every human being has the right to privacy and confidentiality unless he or she waives that right and allows someone to enter his home or to reveal his secret.

Therefore, there is no doubt that the halakhah forbids disclosure of vital statistics or confidential information about anyone without the express permission of the person in question. This conclusion is based on four prohibitions leading from the more general to the specific case under discussion.

1. I) Visual Privacy: Hezek R’iyah

First of all, the Torah itself clearly shows great respect for visual privacy. In Genesis 3:7, we are told that Adam and Eve “perceived that they were naked and they sewed together fig leaves and made themselves loincloths”. Later on, in Genesis 9:20-27, we read the story of Noah who got drunk in his tent. Ham, father of Canaan, saw his father’s nakedness and told his brothers Shem and Yefet who took a cloth and walked backwards, covering Noah’s nakedness without looking. When Noah woke up, he cursed Canaan and blessed Shem and Yefet. Thus the Torah clearly indicates the importance of? visual privacy and condemns those who violate this basic right.

In the Mishnah , this right to visual privacy gave birth to the concept of “hezek r’iyah” or damage caused by looking. The Mishnah in Bava Batra 3:7 states: “In a common courtyard, a person should not open a door opposite a door and a window opposite a window”. The Talmud ( Bava Batra 60a) learns this principal from Balaam. It says in Numbers 24:2,5 that Balaam saw Israel dwelling according to tribes, after which he exclaimed “how goodly are your tents O Jacob, your dwelling places O Israel!”. “What did he see? He saw that their tent openings did not face each other. He said: these are worthy for God’s presence to rest upon them”. The Rema adds in the Shulhan Arukh ( Hoshen Mishpat 154:7) that it is forbidden to stand at your window and look into your neighbor’s courtyard “lest he harm him by looking”. The Shulhan Arukh further rules ( ibid. , 154:3) that if Reuven wants to open a window into a common courtyard, Shimon can prevent it, and if Reuven opens the window, Shimon can block it up.

1. II) Privacy from Intruders

A second type of privacy protected by Jewish law and lore is the privacy of one’s domicile from unwanted or unannounced intruders. This attitude is expressed in three aggadic or non-legal statements. The first two state that one should not enter a house, even one’s own, without warning. Rabbi Shimon bar Yochai (second century c.e.) states in Leviticus Rabbah (21:8, ed. Margaliot, pp. 486-487) that “God hates four things which I also dislike…and a person who enters his own home suddenly and – there is no need to add – his neighbor’s house.” This idea is echoed by Rav, after which the midrash relates that Rabbi Yohanan used to clear his throat before entering Rabbi Hanina’s house in order to make sure that he wasn’t invading anyone’s privacy.

We learn in Pesahim 112a that “Rabbi Akiva commanded his son Yehoshua seven things: my son…do not enter your house suddenly, how much the moreso your friend’s house”.

The third source goes one step further. Midrash Lekah Tov (to Leviticus 1:1, p. 3) states that one may not enter his friend’s house without permission and it learns this principle from God Himself! In Exodus 40:35 we are told that Moses could not enter the Tent of Meeting, whereas Leviticus 1:1 implies that God spoke to Moses in the Tent. “From this we learn that a person should not enter his friend’s house unless his friend [i.e. God!] says ‘enter’.”

Furthermore, protection from intruders also found legal expression. In Deuteronomy 24:10-11, the Torah forbids a creditor from entering the house of a debtor in order to take a pledge:

When you make a loan of any sort to your fellow, you must not enter his house to seize his pledge. You must remain outside, while the man to whom you made the loan brings the pledge out to you.

The rabbis added that even an officer of the court may not enter the debtor’s house in order to take a pledge (Sifrei Devarim , par. 276, ed. Finkelstein, p. 295; Tosefta Bava Metzia 10:8, ed. Lieberman, pp. 118-119; Bava Metzia 113a-b) and this was codified by Maimonides  (Hilkhot Malveh V’loveh 2:2) and the Shulhan Arukh ( Hoshen Mishpat 97:6). Thus, even a person with a very good reason, may not invade another person’s territorial privacy.

III) Protecting the Mail: The Herem of Rabbeinu Gershom

A third type of privacy protected by Jewish law is the privacy of one’s mail as defended by the herem (ban) of Rabbeinu Gershom Me’or Hagolah (Germany , 960-1028). He is the reputed author of a series of takkanot or rabbinic enactments governing various aspects of Jewish life ( On the takkanot attributed to Rabbeinu Gershom, see Louis Finkelstein, Jewish Self-Government in the Middle Ages , New York, 1924 (and reprints), pp. 111-138; Entziklopedia Talmudit , Vol. 17, cols. 378-454; and Israel Schepansky, Hatakkanot B’yisrael , Vol. 4, Jerusalem, 1993, pp. 78-128). One of the takkanot attributed to him says that “One should not read his friend’s letter” and some versions add: “without his knowledge and without his permission” ( For the many versions of this takkanah , see Finkelstein, pp. 31, 178, 189, 195, 211; Entziklopedia Talmudit , cols. 452-454; and Schepansky, pp. 95-96). Indeed, until today some observant Jews write hdr”g ( ???”? ), an abbreviation of ” herem d’rabbeinu Gershom “, on the outside of their letters.

1. IV) Confidentiality

Finally, in addition to all of the above laws and legends which are intended to protect a person’s privacy , there are sources which prohibit the disclosure of secrets or confidential information or require the permission of the person in question before that information may be revealed. Proverbs 11:13 says that “A base fellow gives away secrets, but a trustworthy soul keeps a confidence”. The Mishnah (Sanhedrin 3:7) uses this verse, as well as Leviticus 19:16, to teach that judges are not permitted to reveal their deliberations after a verdict is reached and this ruling was codified by the Rif (Sanhedrin , ed. Vilna, fol. 9a) and by Maimonides (Sanhedrin 22:7).

The Talmud (Sanhedrin 31a) adds a story about a student who revealed a secret from the House of Study twenty-two years after the fact (It should be noted that the number twenty-two is a round number in rabbinic literature. Yeruham Fishel Ber, Divrey Meshulam , Frankfurt am Main, 1926, pp. 45-48 cites sixteen examples of this phenomenon and many others can be added). It is not clear what kind of secret is intended; Rashi (ad. loc.) says that it was some bit of slander or gossip. In any case, Rav Ami threw him out of the House of Study, saying: “This is a revealer of secrets!” This source was followed by Rabbi Eliyahu ben Hayyim of Constantinople (1530-1610). He ruled in his responsa (Ra’anah , No. 111) that if one of the communal leaders revealed the secret deliberations of the City Council, he is disqualified from serving on the Council.

The last source we shall quote has the most direct bearing on our case. We read in the Talmud (Yoma 4b):

How do we know that when a person tells something to his friend, the latter may not repeat it until the person says to him “go and say”? As it is written (Leviticus 1:1): “And God spoke to [Moses] from the Tent of Meeting to say.”  (Rashi ad. loc. says that “leimor” (“to say”) is being  understood as ” lo emor ” (“do not say”), while the Meiri ad. loc. explains that the redundant ” leimor ” teaches us that God spoke to Moses in order that he should tell others).

This source was codified by Rabbi Moses of Coucy (France, ca. 1236, Semag, Negative Commandments, No. 9) and by Rabbi Abraham Gumbiner (Poland, 1637-1683, Magen Avraham to Orah Hayyim 156, middle of subparagraph 2). It means that one may not reveal a confidence without the express permission of the confider. Thus, it is clear that Jewish law and tradition prohibit a business from revealing its clients’ particulars to other companies without the express permission of the person in question, both because of its general approach to privacy and because of the specific prohibition against disclosing secrets.

There is no question that it will be difficult to change society’s attitude towards privacy and confidentiality. But through our opposition to the so-called trivial practices described in the question, we can begin to arouse public consciousness to the problem and to slowly restore to each individual the privacy and the confidentiality which they deserve according to Jewish tradition.

David Golinkin
Jerusalem
8 Tevet 5767

Bibliography

Rabbi Alfred Cohen, Journal of Halacha and Contemporary Society , 1 (Spring 1981), pp. 53-102

Entziklopedia Talmudit , Vol. 8, cols. 659-702, s.v. Hezek R’iyah

Rabbi David Golinkin, Insight Israel: The View from Schechter , Second Series, Jerusalem , 2006, Chapter 20 and the bibliography listed there

Rabbi Norman Lamm, Judaism 16/3 (Summer 1967), pp. 301-312

Rabbi Nahum Rakover, Hahaganah al Tzina’t Haperat (Privacy), Jerusalem , [1970], 18 pp.

Rabbi Elie Spitz, Jewish and American Law on the Cutting Edge of Privacy: Computers in the Business Sector , University Papers, Vol. VI, No. 1, University of Judaism, October 1986, 16 pp.

All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.

Prof. David Golinkin is President of the Schechter Institute of Jewish Studies in Jerusalem. Feel free to reprint this article in its entirety. If you wish to abbreviate it, please contact Rabbi Golinkin at golinkin@schechter.ac.il. The opinions expressed here are the author’s and in no way reflect an official policy of the Schechter Institute.