by R’ Yaacov Schonberg

PRIVACY IN HALACHA

The opening dafim of Bava Basra discuss היזק ראיה, damage by visual access. Partners who share a yard or garden are required to divide the area with a partition and there is discussion regarding its size and materials. The gemora considers whether the parties have the option not to build a partition and not to be concerned about their privacy. This suggests that possibly we give no value to privacy. However, the gemora rejects such a notion and argues that everyone agrees that more extreme breaches of privacy must be stopped and one must be prevented from seeing into his neighbour’s house. Rashi explains that in a home people are engaged in acts which require privacy and hezeik reiya is considered actionable damage which Beis Din will prevent. Ramban (Bava Basra 59a) provides three reasons for this:

• Gazing at what people are doing creates ayin hara, as discussed in a recent Daf Topic,
• It causes lashon hara, gossip and related issues,
• It is a violation of tzenius, respecting the privacy of domestic life. It inhibits people from carrying out regular home activities.

DIGITAL MEDIA

With the advance of communication technology that facilitates easy intrusion upon the individual’s life and affairs, there are many new issues of violation of personal privacy, and we need to consider how halacha addresses these circumstances. What is the halachic status of emails and other digital communications aside from secular regulations? How does halacha view eavesdropping, wiretapping and surveillance? The laws of היזק ראיה demonstrate that halacha’s injury prohibitions relate not only to one’s person, but also to one’s personality and dignity. The first two reasons understand היזק ראיה to be actual damage, whilst with the third, the word damage is being used loosely, in that it prevents his neighbour from fully utilising his property. Do we view היזק ראיה with a strict construction, or does halacha recognize that the underlying principles as outlined above can be applied to similar situations?

היזק שמיעה

We have an example of broadening היזק ראיה in the question of whether it extends to היזק שמיעה. Meiri (Bava Basra 2a) writes that the yard partitions do not need to be soundproofed because most people are careful how they talk, and therefore being too close to someone’s property should limit their activities and they will know to be sufficiently quiet. Meiri appears to agree that damage by ‘hearing’ is relevant, but soundproofing is an unnecessary imposition because people would take care not to speak loudly in an open area. R’ Eliyahu Mizrachi (Teshuvos Re’em-8) writes that we do not find mention of היזק שמיעה anywhere in the Talmud, so it would appear that it is not considered actionable damage at all. Emek Hamishpat (3:26) attempts to reconcile the two views and argues that although ‘hearing’ damage is mentioned specifically, since at least the last two reasons of the Ramban would equally apply, R’ Mizrachi would surely agree that actionable damage can be caused by sound and not just sight. His argument that we do not find it in the Talmud relates to the question of enforcing soundproof partitions, which we do not impose, and the reason would be as explained by Meiri, that people anyway will not speak loudly in the open.

AYIN HARA

I would add that the first reason of the Ramban for היזק ראיה of ayin hara would also be applicable to social media nowadays. A recent survey summarises problems created by social networks and notes that while jealousy may be normal, it is particularly insidious in the world of Facebook, where people craft their own profiles and therefore can generate the perception that their lives are perfect, or at least better than the lives of others. When people consume this information, they inevitably judge their own lives as less successful than those of their friends and that others are happier. They tend to perceive that others are constantly happy, while paying little attention to negative issues that may be present. This can lead to deprssion; thus, social media carries the destructive force of ayin hara in its full intensity. The extent of damage arising from digital communications will depend on what is done with the information received. Issues relating to confidentiality and divulging information will iyh be the subject of a separate Daf Topic on Bava Basra 39a, but for now we will focus on halachic implications where the information is retained by the recipient for his own use or out of curiosity. Cherem D’Rabbeinu Gershom banned opening and reading another person’s letter, but would that include mail or data transmitted digitally?

CHEREM D’RABBEINU GERSHOM

One of a long series of takanos, some of which are attributed to Rabbeinu Gershom, relates to opening of and reading private correspondence. These takanos were first mentioned at the end of Teshuvos Maharam Rothenburg-1022 (Prague 1608). Three of them are famous – the regulation against bigamy, against forcible divorce and the prohibition of reading other’s letters. Several of the regulations included in this list are communal takanos adopted at a later date and consolidated by Maharam Rothenburg. Since they were only recorded hundreds of years later, the exact text of the original decrees has not been preserved and different criteria and conditions may apply to their enactment. A cherem carries many different social and economic punishments; in some cases they are automatic but in others they must be enforced by Beis Din. The regulations against bigamy and forcible divorce were previously permitted and the cherem was only accepted in Ashkenaz and carried an expiry date, although nowadays almost all communities accept it. Where the cherem was instituted to enforce existing prohibitions with additional levels of stricture, it is of a different nature and limitations such as an expiry date would be inappropriate. If the cherem regarding reading letters was only reinforcement of existing issurim, then the actual wording of the cherem (to open a letter) is unimportant, and prohibitions relating to digital communications would hinge on the application of rules governing those issurim.

ISSURIM IN READING MAIL

Rabbi Yakov Chagiz (Hilchos Ketanos-1:276) writes that this would be a transgression of rechilus, of going as a talebearer, as there is no difference between revealing something to others and revealing something to oneself. Rav Chaim Shabbetai (Toras Chaim-33) argues that as the information in the letter is owned by the writer and receiver of the letter, reading the letter is a form of theft, specifically borrowing without permission. Rav Chaim Palagi (Chikrei Lev-YD49) similarly asserts it is like a guardian who violates his stewardship, which is another subcategory of theft. Rav Palagi suggests that it also transgresses ואהבת לרעך כמוך – ‘do not do to your friend what you would not want done to you’ (Shabbos 31a). He also extends geneivas daas to mean stealing knowledge. Thus, even if one interprets the cherem literally as only referring to handwritten letters, these issurim may still be relevant regarding digital media. The prohibition basis may shape its application. For example, if its basis is love of ‘your fellow’, that would be limited to reading letters of Jews, but if the prohibition is a form of theft, that may apply to letters of non-Jews, although one could argue that this is a minor level of theft that would not apply to non-Jews.

ASSUMPTION OF PRIVACY

Be’er Hagola (CM334) writes that once a letter has been thrown out, anyone is permitted to read the letter on the assumption that the recipient no longer considers it private. However, R’ Shammai Gross (Shevet HaKehasi-1:315) notes that may not apply nowadays, as most people assume that no one goes rummaging through their garbage, so each situation needs to be judged as to what indicates a lack of desire for confidentiality. This indicates that the primary person who determines the confidential status of correspondence is the recipient, but Rav Gross notes that would only be the case where someone else reading the communication would cause no damage to the sender. If it would cause damage, one must assume that the material is meant to stay confidential. Rav Palagi argues that one is never allowed to share mail with another without the express permission of the sender. Rav Chagiz (1:59) notes that where there is a practice to head letters with the abbreviation ופגי”ן דרגמ”ה = ופורץ גדר ישכנו נחש דרבנו גרשום מאור הגולה then there certainly is a presumption that the sender wants the letter to remain private. Aruch Hashulchan (YD-334:21) raises a question concerning postcards: is there an assumption of confidentiality when the letter is written in such a way that it is always open? Rav Gross argues that even if Post Office staff can read it, that is not sufficient indication that the sender would be happy for its contents to be publicised. Extending this concept to electronic communication, one would need to assess whether there is an assumption of privacy based on the guidelines above.