Protecting Privacy In An Age Of Publicity

Protecting Privacy In An Age Of Publicity

 

Friends will be much apart. They will respect more each other’s privacy than their communion. – Henry David Thoreau

 

Before the U.S. Constitution became a plaything for the justification of socio-political agendas, privacy was a respected institution in the United States. It even played a role in the birth of the country.

In the 1760s, the English sought to tighten control over their vast empire through a systematic crackdown on civil liberties. One such measure was the “Writ of Assistance,” which authorized British officers to enter and search homes and businesses with impunity. Unlike a search warrant, these writs were open-ended and approved the search for anything or nothing at all.

Unsurprisingly, matters came to a head in Boston’s North End. An English customs official named Benjamin Hallowell suspected that one Daniel Malcom’s cellar held “Brandy Wines and other Liquors” for which Malcom purportedly had not paid the proper tariffs. Malcom was not the type to sit idly by as British soldiers invaded his privacy, so he demanded to know the particulars of Hallowell’s writ. Hallowell refused.

Before long, a bitter argument was brewing. Hallowell demanded to see a basement room that was locked, and he threatened to enter by force. If he tried to enter, Malcolm, who was brandishing two muskets and a sword, “would blow his brains out.” A defiant Malcom stayed inside his home all afternoon, while a vocal crowd of Colonists outside unnerved the English soldiers.

As afternoon turned to evening—voiding the warrant—Hallowell slinked away, humiliated but brain intact. Malcom celebrated by dispensing “buckets of wine” to his friends. At last, a line had been drawn for what later would become the U.S. Constitution’s Fourth Amendment: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Bilaam long ago recognized respect for privacy as a hallmark of Jewish exceptionalism when he praised the Jewish people. “And Bilaam lifted up his eyes and he saw Israel dwelling according to their tribes” (Bamidbar 24:2-5 and Rashi ad loc.). Seeing that the doors of their tents did not face one another inspired him to bless the Jewish people as “worthy that the Divine Presence should rest upon them” (Bava Basra 60a).

The Torah recognizes the need for privacy and promulgated laws to ensure its protection. Bilaam’s compliment teaches that one may not open a window that faces the courtyard of partners or open a door facing another person’s door or a window facing another person’s window (Bava Basra 60a). Not only is it forbidden to peer through another person’s windows (Shulchan Aruch, Choshen Mishpat 154:3), neighbors can force one another to build fences and walls to maintain each other’s privacy (Aruch HaShulchan, Choshen Mishpat 154:14; but see Shulchan Aruch, Choshen Mishpat 158:1 [no obligation where not customary practice]).[1]

In a well-known measure aimed at safeguarding privacy, Rabbeinu Gershom banned the unauthorized reading of private letters: “A ban was issued not to look at a letter of one’s friend that was sent to another friend, without his knowledge. If it was discarded, it is permitted” (Responsa of Maharam of Rottenberg, Prague Edition, No. 1022, Frankfurt Edition 160a).[2] That the ban was intended to be indefinite, was embraced by all Jewish communities, and was enacted to prevent Torah violations strongly suggest that it should be heeded vigilantly (Noda B’Yehuda, Even HaEzer, Vol. 1, Nos. 75 and 77; S’dei Chemed, Vol. 6, pg. 265; see Rambam, Vayikra 27:29; Responsa T’shuvos V’hanhagos 3:388). In fact, some suggest prefacing private correspondence with the hebrew letters for “PGYN”—which stands for “Poretz Geder Yishchenu Nachash” (“one who breaches a fence should be bitten by a snake”)—as a reminder of Rabbeinu Gershom’s ban (Responsa Halachos K’tanos 1:276).

The policy underlying the ban—preservation of privacy—dictates that no distinction be drawn between communications sent by snail-mail and those transmitted in person[3] or by telephone, text, fax, e-mail, instant message, or direct Tweet. On the other hand, when others act in a manner that evinces an intent not to keep something private (e.g., talking so others plainly can hear, sending written communications by postcard), there can be no expectation of privacy (Responsa of Maharam of Rottenberg, Prague Edition, No. 1022, Frankfurt Edition 160a).[4]

Privacy should be maintained even when performing good deeds. The Tabernacle services could not be viewable by the public (Zevachim 59b), and G-d preferred speaking to Moshe when he was in the Tent of Meeting because it was private (Bamidbar Rabba 1:3). The first tablets were destroyed whereas the second tablets were not, because the former were given publicly while the latter were given in private (Medrash Tanchuma, Ki Sisa 31; Rashi, Shemos 34:3; K’li Yakar, Bereishis 24:22). This is the reason that the second-noblest form of charity giving is where the giver and receiver don’t know the identity of the other (Rambam, Matnos Aniyim 10:7–14). And, although ordinarily one is permitted to make use of another’s Sukka, one may not do so if the owner’s family is inside because the owner’s privacy should not be curtailed (Taz, Orach Chaim 637:4).

The Torah is replete with illustrations of how to avoid trampling on the privacy of others.

The priestly robe worn by the Kohen Gadol (Ephod) was sewn with bells so that “a voice will be heard” when he enters the sanctuary (Shemos 28:33-35), from which we derive that, when entering a room—even one’s own home—one should knock so as to protect the privacy of those inside (Pesachim 112a; see Queens Jewish Link, Shabbos Inbox, Vol. I, No. 4).

When commanded to “count the children of Levi…from the age of one month and up,” Moshe asked G-d, “How can I enter the private tents of other people to know how may infants each family has?” G-d agreed, telling Moshe to simply stand at the opening of each tent and He would call out the number of infants therein (Bamidbar Rabba 3:9; Bamidbar 3:15-16 and Rashi ad loc.).

Everyone is entitled to privacy—even those who may not deserve it.

After warning Paroh of the impending plague of locusts, Moshe suddenly and abruptly left the palace (Shemos 10:6). Based on subsequent verses describing how Paroh consulted with his advisors, some explain that Moshe left so as not to invade Paroh’s privacy. Wicked though he was, Paroh still was entitled to his privacy.

The story is told of a rabbi imprisoned by Czarist Russian authorities on trumped-up charges. As he was led to his “trial,” two officials within earshot of the rabbi began speaking about the case in French, a language they assumed the rabbi did not understand. No sooner had they began their conversation than the rabbi abruptly walked away from them.

“Jew! What arrogance!” they yelled. “Who permitted you to just walk away?”

“When I heard you speaking French,” the rabbi explained, “I realized immediately that you did not want me to understand your conversation. But, as it happens, I am fluent in French. So I walked away from the conversation that I was not intended to understand.”

Recognizing that a man of such integrity could never have committed the crimes of which the rabbi was accused, the officials agreed to drop all charges against him.

Everyone has a right to privacy, free from meddlesome intrusion into their affairs.

That’s not to say that privacy knows no limits. It does.

Privacy rights might be suspended temporarily where doing so will help the person whose privacy is being invaded. The ban was never intended to protect those who violate the Torah but to ensure we act in a correct and modest manner (Responsa of Rashba, Vol. 1, No. 557). In bygone times, witnesses were designated to eavesdrop on those who sought to convince others to violate the Torah (Sanhedrin 67a). Likewise, parents or educators who reasonably suspect their child or student is in harm’s way (physical or spiritual) can—and should—suspend the child’s privacy.

The temporary suspension of privacy also might be warranted where there is an overriding public benefit at stake. For instance, R’ Akiva once followed his teacher, R’ Yehoshua, into the bathroom, explaining “It too is Torah and I need to learn it” (Berachos 62a). R’ Meir Shapiro threw a large, public bash to celebrate the opening of his yeshiva. Although he understood the need to promote privacy, R’ Meir Shapiro explained that the Jewish people needed to be shaken awake by such an event (Pardes Yosef, Shemos 34:3).

It is human nature to relish the opportunity to learn information about others. Today’s society—which grossly over-encourages the publication of every thought, idea, desire, experience, and picture—has made accessing such information all the more feasible.

But not every achievement was meant to be flaunted. Not every picture was meant to be published. Not every thought was meant to be shared.

Moshe understood that. Rabbeinu Gershom understood that. Bilaam understood that. And Daniel Malcom understood that.

And so should we.

 

[1] In addition to protecting privacy, gazing upon others can cause damage through the “Evil Eye” (Shulchan Aruch, Choshen Mishpat 378:5), for which damages the gazer is liable (Aruch HaShulchan, Choshen Mishpat 154:6). Indeed, “blessing only comes to that which is private and protected from the public eye” (Bava Metzia 42a).

[2] See generally Responsa B’nai Banim 3:17.

[3] There may be no obligation to actively refrain from listening to conversations or other goings-on in another person’s home (R’ Akiva Eiger, Choshen Mishpat 154:3).

[4] Accessing the private information of others may be deemed gossip-mongering, even if not disclosed to others (Responsa Halachos K’tanos 1:276). Similarly, it is forbidden to reveal information to others that one has been told to keep secret (see Orchos Chaim 41; see also Queens Jewish Link, Shabbos Inbox, Vol. III, No. 5).

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