By Rabbi Michael Leo Samuel
CHULA VISTA, California — Most rabbinical students attribute omnipresence and omniscience as qualities befitting a Creator. Only God is called, “The Knower of Thoughts,” and “The Searcher of the human heart.” Rabbinical wisdom has long taught, “Always keep in mind these three things, and you will never come to the brink of sin: know what is above you—a watchful Eye, an attentive Ear, and all your deeds are recorded in a book.”[1]
But what if God wasn’t the only one monitoring human thoughts and inspecting hearts? What if the State possessed this kind of God-like power? What if the “watchful eye” observing our behavior happens to be a mind-reading machine, or a drone flying above our cities, silently watching our every move? What if the “attentive ear” listening to us happens to be some government agency monitoring our telephone conversations? What if somebody—other than God—is recording our deeds in a special book? Worse still, what if the State had the power to monitor your thoughts?
Are we slowly becoming an Orwellian society?
The jury is out . . .
It is amazing how in some places where the traffic is relatively sparse, you—the driver—can see the presence of a camera monitoring you as you drive along the road. When these cameras first came out, a Russian friend of mine commented, “Not even in the old Soviet Union did we possess such advanced technology for spying.” Obviously, had the technology been available, they certainly would have used it.
Today’s world is very different from the one I remember growing up in.
About a year ago, I decided to rejoin the ACLU. It wasn’t because I agree with their political issues; many of their cases seem like a waste of time and effort. However, the ACLU is very strong about privacy rights, which I believe is one of the most important issues of our time.
The erosion of democratic values is a slow process. Autocratic forces within the government realize that micromanaging and watching over the affairs of Americans is not something most citizens will approve. Undeterred, our autocrats have found new ways to achieve their objective in creating a modern day Orwellian society. Since the 9/11 attack upon our nation, most Americans feel more “insecure” than past generations about their safety and security. The specter of terrorism has exposed our Achilles heel as a society. Yes, many of us feel we would rather give up some of our freedoms for the sake of feeling secure.
Several new scientific advances now available pose some interesting legal challenges to our concept of privacy. Technological breakthroughs in neuroscience have now demonstrated that it is scientifically possible to read people’s minds. “In fact, some researchers have found that it is monitoring voters’ brains, pupils and pulses, and may be more effective than listening to what they have to say.”[2] The technology is not necessarily evil per se, for many researchers at Berkeley have found that this technology has the potential to restore speech (via prosthesis) to people who have lost their ability to speak, as a result of a traumatic brain injury or stroke. But what about its military applications?
Whether it is electricity or nuclear energy, its moral value is determined by how it is used. Electricity gives light to our homes, but it can also be used to electrocute prisoners. However, given the inevitable military or political use of this technology, it is important that the courts protect our rights and freedoms.
Every person has the right to privacy—which includes the freedom from unlawful intrusion into one’s home, from unreasonable searches of person or property, from eavesdropping on people’s confidential conversations, and from unauthorized reading of personal documents.
Jewish tradition is very sensitive to the issues of privacy rights and there are many Scriptural passages that support everyone’s inalienable right for privacy. For example, “A scandalmonger reveals secrets, but a trustworthy man keeps a confidence” (Prov 11:13). The ancient Jewish philosopher Ben Sira said, “The foot of a fool rushes into a house, while a well-bred person remains outside.” Over 2100 years later, Alexander Pope expressed a similar thought, “Fools rush in, where angels fear to tread.” Ben Sira continues, “A fool peeps into the house from the door, but a cultured person keeps his glance cast down. It is inappropriate for a person to overhear a private conversation through the door; a considerate person would be upset by the disgrace of it” (Ben Sira 21:22-24).
The Sages prohibited revealing confidences,[3] which gave rise to the ruling, “Let no man search out the secrets of his fellow”[4] In the 10th century, Rabbi Gershom threatened to put any person under the ban anyone who illicitly read another person’s mail.[5] Nevertheless, there are exceptions depending upon the severity of a crime.[6]
One of the more fascinating concepts of privacy rights in the Talmud deals with properties facing one another in a joint courtyard.” “One may not open in a jointly owned courtyard an entrance facing an entrance or a window facing a window. If it was small, he may not make it large. One, he may not make it two. But he may open to a public thoroughfare a door opposite an entrance and a window opposite a window.”[7] Maimonides thus rules,
If one of the partners in a courtyard desires to open up a new window from his house overlooking the courtyard, his colleague may prevent him from doing so, for this allows him the possibility of looking at him at all times. If he opens such a window, he must close it. By the same token, partners in a courtyard should not open the entrance of a house opposite the entrance of a neighbor’s house, or a window opposite a neighbor’s window. In the public domain, by contrast, a person may open an entrance opposite a colleague’s entrance and a window opposite a neighbor’s window. For if the neighbor demurred, he could tell him: “Why is my seeing you considered worse than any other passerby, who can also see you?”[8]
In short, the privacy laws pose a slippery slope and in this case, to be forewarned is to be forearmed. It is important that organizations like the ACLU continue their vigilance in safeguarding our civil liberties. Letting your local politician know about your concerns is another way of doing something to ensure the freedoms we all enjoy.
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Notes:
[1] Mishnah Avoth 2:1.
[2] Wall Street Journal, 14 December 2007.
[3] BT Yoma 4b.
[4] Rabbi Ya’akob Ḥagiz, Resp. Halakhot Ketannot, I:276.
[5] The Rabbinic Decrees of Rabbenu Gershom Meʾor ha-Golah, quoted in Resp. Maharam of Rothenburg, ed. Prague, p. 160a.
[6] See Mishnah to Sanhedrin 7:10. Notwithstanding Rabbenu Gershom’s decree, if there are reasons to believe that opening a letter might prevent bodily injury or financial loss, it is permitted to open the letter (R. Ḥayyim Palache, Responsa Ḥekikey Lev, 1 YD #49.
[7] Mishnah Bava Bathra 3:7.
[8] Maimonides, MT Laws of Neighbors 5:6; Hoshen Mishpat 154:3 .