Do Jewish Ethics Permit Unlimited Electronic Surveillance?
Some issues dominate the news; others drift along under the radar. This is literally true of electronic surveillance, a worldwide and quickly growing force that could profoundly change our lives. The ancient rabbis were skeptical of spying and eavesdropping. What would they make of our ever-greater abilities in this realm?
The only allowable unlimited surveillance is that of our Creator, whose surveillance is active “from the beginning of the year to the end” (Deuteronomy 11:12). Or even more clearly in the words of our ancient tribal chieftain Solomon: “The eyes of Hawayah are in every place; they see all the good and the bad” (Proverbs 15:3). As for us mere mortals, we are to learn to respect each other’s privacy. In fact, this principle of ours so deeply impressed our ancient enemy, Balaam the Shaman, that he ended up blessing us when his intent had been to curse us. Standing atop one of the hills of Moab 3,400 years ago, he looked down upon the Camp of Israel and noticed how everyone had the opening of their tent facing the rear of their neighbor’s tent in respect for their privacy, which moved him to proclaim: “How goodly are your tents, O Jacob; your dwelling sites, O Israel!” (Numbers 24:5)—said in our daily prayers to this day. Ancient rabbinic rules around construction continued to reflect this sentiment of honoring privacy, forbidding us to construct our windows facing our neighbor’s windows or our doorway entrance facing that of our neighbor (Mishnah, Bava Batra 3:7).
Rabbi Gershon Winkler
Walking Stick Foundation
Not too long ago, this would have been a topic for Jewish science fiction. Yet here we are, technology advancing as fast as our imagination, facing ethical quandaries unaddressed by historical circumstances. Judaism does value privacy, at least in part; the Talmud also has teachings about respecting confidentiality (Talmud Bavli, Yoma 4b). Yet no text I could find addressed anything like “unlimited electronic surveillance.”
The real modern problem of unlimited surveillance is not primarily about privacy, but control. The societies currently employing the greatest amount of surveillance, such as China or North Korea, are the same ones that seek maximum possible control over citizens’ beliefs and behaviors. This application of technology to authoritarianism is what worries many Humanists like me. Many of the values that we cherish, namely free speech, responsible individual autonomy and the supremacy of the secular state, are threatened by surveillance run amok. True, in this age of disinformation, there are many other threats to these same values, but “unlimited surveillance” would only make things much, much worse.
Rabbi Jeffrey L. Falick
Birmingham Temple Congregation for Humanistic Judaism
Farmington Hills, MI
No, absolutely not! Midrash teaches that when Balaam, surveying the Israelite tent city that King Balak had ordered him to curse, exclaimed, “Mah tovu ohalecha Yaakov—how good your tents, O Jacob!” he was celebrating the fact that the tents were pitched at angles so that no one could peer from one tent to another, violating the family’s privacy (Talmud Bavli, Bava Batra 60a). Why would the rabbis have thought up this midrash? Remember that they were living under the heel of the Roman Empire, with its secret police surveilling them.
Adding midrash upon midrash, I would speculate that King Balak had intended to peer into all of their houses; that was part of the curse he wanted Balaam to invoke, but Balaam was prevented from doing so by the self-protective privacy of these wonderful tents.
In 2016, the FBI wanted to force Apple to provide a “back door” into all of its iPhones, breaking Apple’s own way of “pitching the tent” to preserve our phones’ privacy against government and hackers. Apple refused. The American Civil Liberties Union objected to the request on constitutional grounds, the Shalom Center on Torah grounds. The FBI backed down.
Rabbi Arthur Waskow
The Shalom Center
In Alfred Hitchcock’s film Rear Window, Jimmy Stewart looks across the courtyard with his powerful camera lens, spying on neighboring apartments. He unexpectedly solves a crime, but he also focuses his hidden and unwanted gaze on many private moments of innocent neighbors.
Jewish ethics do not permit unlimited electronic surveillance. Genesis addresses the issue of the unwanted gaze when Adam and Eve reach for fig leaves and when Noah’s son gazes at his father’s nakedness. The Talmud concerns itself with privacy in courtyards, like that in Rear Window. Torah, midrash and Talmud forbid barging in without clearly announcing oneself, calling it an issue of derech eretz, basic etiquette. But you don’t need Aramaic to know that—you just need to read Emily Post!
Yet the new digital world enables and often permits the unannounced gaze in the form of unregulated electronic surveillance. We need to apply the same standards of privacy and dignity to the digital world as to our communities. The dangers of unregulated government surveillance have always been clear. Companies’ ability to track our every move, purchase or internet search in order to sell or persuade is also dangerous. It reduces our personhood and violates our basic human dignity, the Jewish value of kevod habriyot. As a character says in Rear Window: “We’ve become a race of Peeping Toms. What people ought to do is get outside their own house and look in for a change.” Our society needs to step “outside” the profits made by digital surveillance and strengthen our shared values that make communities of trust possible.
Rabbi Caryn Broitman
Martha’s Vineyard Hebrew Center
Vineyard Haven, MA
Questions about surveillance are ubiquitous and multifaceted. Am I being surveilled by an employer in the workplace? Am I surveilling with a video camera on the front of my house? Is my data being tracked by advertisers online? Do I enable my phone for COVID-19 contact tracing? These examples raise a variety of ethical considerations.
On the one hand, our texts teach that a lender is to avoid entering the home of a borrower; this is meant to protect dignity and privacy. A laborer is to be given a fair contract and compensated accordingly, so perhaps an individual’s data, which hold value, should not be taken without consent. These texts suggest that surveillance is unethical.
On the other hand, contact tracing enables notification of exposure to harmful toxins and viruses such as COVID-19, upholding the value of pikuach nefesh (saving a life). Location services can improve storm warnings. Installing video cameras in our homes protects us and may help capture intruders, thus aiding in enacting justice.
These are enduring dilemmas without universal or simple solutions. It is upon each of us to determine how we wish to use the guidance of Judaism to make decisions.
Rabbi Dr. Laura Novak Winer
Hebrew Union College-Jewish
Institute of Religion
As in so much about Jewish ethics, there is no simple answer to this question. A strong argument can be made that any electronic surveillance is forbidden. Rabbeinu Gershom Me’or Hagolah (960-1040 CE) ruled that a person would be excommunicated for reading his friend’s letter. Arguably, the same penalty could apply to email. Many sources prohibit the disclosure of confidential information or require permission from the person in question.
On the other hand, one could argue that electronic surveillance is permitted. Unlike with a sealed letter, it is not clear that electronic communications are actually considered private. In the Journal of Halacha and Contemporary Society, Rabbi Alfred Cohen argues that today users cannot claim a right to privacy, since it’s widely assumed that phone calls, emails and text messages can be readily accessed.
Finally, is the surveillance being done by the government to protect its citizens from terrorist attacks? Or by individuals or companies to pry into people’s doings? Preventing the death of innocent people is a priority over protecting one’s right to privacy. But individuals do have a right to privacy!
Rabbi Amy Wallk Katz
Temple Beth El
There is no discussion of this issue in classical rabbinic literature. Unlimited electronic surveillance has only been possible thanks to the development of technology in recent years. This is called progress?
Only one usable traditional source comes to mind. The Talmud discusses whether disrupting someone’s privacy is considered actionable damage (Talmud Bavli, Bava Batra, pages 2a and following). The rabbis are split. Some rule that a rabbinic court can enforce building a wall or screen at the owner’s expense to restore the neighbor’s privacy when the owner invaded it through construction. Extrapolating to today: Privacy is a fundamental aspect of human dignity. Privacy protects the right to be myself and to choose how I live. Unlimited electronic surveillance is ipso facto a violation of human dignity. Therefore, Jewish ethics should prohibit it. (Where there is a reasonable basis to suspect actual or planned crime or terrorist activity, such surveillance should be permitted with legal supervision, including seeking a warrant from an impartial authority.)
Finally, I would argue that unlimited electronic surveillance of an individual violates the equality bestowed on every human being in the image of God. The surveiller gains authority and superiority over the surveillee. Since equality is a fundamental dignity of every human being (see mishnah in Sanhedrin 37a), this is a grave violation—only justified in rare cases where safety and security of others’ lives is at stake.
Rabbi Yitz Greenberg
J.J. Greenberg Institute of Jewish Living
and Learning, Hadar Institute
Jewish ethics put a very high premium on privacy and confidentiality. Privacy is a value in itself, an extension of the concept of modesty. To reveal a confidence violates a variety of ethical principles, starting with “Do not do to others what you do not want done to you.” It also violates the prohibition on lashon hara, gossip. You can’t reveal negative information, even true information, if revealing it would harm the person. Breaching privacy is itself harm. The prohibition would apply to disclosing information inappropriately even if it was obtained legitimately, and to obtaining information illegitimately even if it’s not passed on to anyone.
There are exceptions to the prohibition when public or individual safety is at stake. Preventing harm is a competing factor, which requires careful balancing. There are halachic debates today over whether it’s justifiable to record a conversation without the other party’s knowledge, and whether wiretapping is permissible. They share a framework: Each is objectionable in itself but could be theoretically justified if the motive were to prevent harm. But the wiretapping example is considered a far greater intrusion because it’s a conversation you’re not a party to. U.S. law reflects this. Recording a conversation you’re a party to is legal in some states but illegal in others; having someone’s phone tapped is illegal everywhere, but can be justified by a government warrant.
Rabbi Daniel Feldman
Jewish ethics emphasize the importance of caring for others, so we might conclude that prying into another’s privacy is unethical. But the Bible contains considerable discussion of how to create an ideal state, free of corruption and injustice, which protects the rights of all its citizens. Genesis presents and rejects the antediluvian oligarchy, the totalitarian regime of the Tower of Babel and the extreme capitalism of Sodom (as highlighted in Ezekiel 16:49). Abraham is chosen because he will teach his descendants justice and charity (Genesis 18:19). The Book of Kings critiques monarchy, and Ecclesiastes laments the corruption of power structures (5:7-8). The Ten Commandments prohibit using God’s name in vain and bearing false testimony. Those prohibitions, meant to ensure fair trials, remind judges and witnesses alike that God is omniscient. Applying these concepts to electronic surveillance, I believe we should respect a surveillance order issued and approved by a transparent legislative system in a democratic country.
When speaking of a sweeping, near-total surveillance, like the NSA’s work exposed by Edward Snowden, things are trickier. The system can be abused to spy on individuals, invade their privacy and limit their liberty. This must not happen, so there should be general oversight, as security permits, by the legislative branch.
However, since I spent my first 25 years in Israel under constant threat of terrorist attacks, then moved to New York one week before 9/11, I personally believe that the end of preventing murderous terrorist attacks justifies the means of conducting surveillance. As a law-abiding citizen, I have nothing to hide. Also, most surveillance conducted today is not wiretapping. Analysts follow surges of keywords in big data and pinpoint individuals only after a pattern has been identified.
Rabbi Haim Ovadia
In Jewish law, there is a clear precedent for the right of privacy, with rabbinic sources discussing the potential damages caused by prying eyes and ears. Famously, Rabbi Gershom (960-1040 CE), known as Me’or Hagolah, “Light of the Exile,” banned unauthorized reading of private letters without proof that it was necessary to prevent danger.
Isaiah refers to the Messianic era as a time when “they shall beat their swords into plowshares, and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more.” Many of these intrusive technologies were first designed for targeting bombs and surveillance of enemy states; it is humanity’s role and responsibility to ensure that they are transformed into tools for real-world good. During Hanukkah in December 1991, the Lubavitcher Rebbe, of righteous memory, noted that satellite technology with its instantaneous connections is a key to understanding the underlying unity that connects all of Creation. “Seemingly, Heaven and Earth are two disparate entities,” he said in a talk broadcast live over satellite, “yet at their core, they are truly one.”
Rabbi Mordechai Lightstone