Jewish Law

Internet Privacy in Halachah

internet privacyA generation ago, the only way to get information about a prospective business partner, employee or shidduch was to inquire among acquaintances. Torah-educated Jews had a strong awareness that the Torah puts well-defined limitations on the kind of inquiries that can be made—limitations described at length in the sefer Chofetz Chaim by Rav Yisrael Meir HaKohen of Radin.

Today, the first place from where we are inclined to obtain information is the Internet. There we find a wealth of information—articles, social media accounts, announcements, blogs, et cetera. Are these sources of information subject to the same halachot as personal inquiries? This is what I hope to explore in this article.

The Gossip and the Spy
The main prohibition against gossiping, as indicated in the Chofetz Chaim, is based on the following verse in Parashat Kedoshim (Vayikra 19:16): “Don’t go about as a rachil among your people; don’t stand idly by the blood of your fellow. I am Hashem.” According to Rashi, the word rachil is a variant of the root rigul, meaning “to spy.” Rigul is the same word used by Yosef when he accuses his brothers of being spies (Bereishit 42:9), by the spies sent by Moshe to scrutinize Yazer (Bamidbar 21:32) and by those sent to scout out the Land of Canaan (Devarim 1:24). The relationship of rachil to rigul should come as no surprise. One who gossips is, in fact, spying on others. A gossip, though, goes one step further: he reports that which he has seen.

Rambam seems to adopt the same approach (Deot 7:1): One who spies [meragel] on his fellow transgresses a negative commandment, as it is written: “Don’t go about as a rachil among your people.” In short, the Torah seems to liken gossiping to spying.

The spy of yesteryear has evolved to a large degree into the cyberspy of today. The term cyberspy—computer spy—evokes someone like Edward Snowden, a computer expert involved in the ultra-secret National Security Agency program that collects computer metadata on hundreds of millions of people.

But how does the Torah regard one who spreads private information about a friend or neighbor on Facebook, Twitter or an instant messaging platform such as WhatsApp? With regard to the halachic issur of “spying,” the only real difference between now and the time of Matan Torah is that the potential for harm is multiplied when gossip reaches the Internet, where it can easily “go viral.”

Halachah and the Cyberspy
It’s pretty obvious that spreading private information is equally forbidden whether it is over a cup of coffee or over a social network. A more interesting, and potentially controversial, question is: Can merely gathering information be considered forbidden “spying” from a Torah perspective?

Consider the following scenario: An individual anonymously posts information that is quite private. He uses fictitious names and carefully omits or alters identifying information. But a skilled cyber detective can use IP lookup, Google Analytics and other tools to, in many cases, unmask the blogger’s identity. Perhaps the same thing can even be achieved by piecing together scattered bits of information via intensive and tenacious use of an ordinary search engine. (To continue the espionage analogy, this approach is sometimes called the “mosaic” technique—numerous pieces of information, innocuous in and of themselves, provide new information when they are assembled into a larger picture, like a mosaic.) A classic example is the NSA’s use of “metadata” to identify possible wrongdoers. A single “metadatum” would be: John Doe telephoned Richard Roe at 3 pm on a certain day. This information is not particularly revealing. But detailed analysis of the entire pattern of a person’s phone calls or web visits can be extremely revealing.

Intuitively, it seems obvious that trying to uncover an anonymous individual’s identity would be wrong. To see why, consider the following parallel. Everyone knows that reading someone’s diary is an invasion of privacy. But imagine you find an anonymous diary, with no identifying information, in some public place. You take interest in reading about the private details of a total stranger. As of now, you have not engaged in any spying since you have no idea who the person is. What happens if you now begin intensive detective work to determine the author? The location of the diary, the handwriting, the style, et cetera—with concerted effort, a skilled detective could discover the author. Discovering the author’s identity after reading the diary is hardly different from reading the diary after knowing who the author is. Likewise, disclosing the identity of an anonymous blogger is like disclosing the author of a diary. But does such “detective work” constitute a violation of the Torah?

At first glance, it would seem that there is, in fact, no halachic problem. First, when one engages in such research, he is revealing information only to himself. Both Rashi and Rambam, when discussing the issur of gossiping, address the transgression of disclosing one’s findings to others. Neither mentions spying per se as a violation—the violation is revealing that which one has discovered. Rashi writes of someone who “goes among the houses of their friends to spy what negative things they see or hear, in order to tell it in the marketplace.” Similarly, Rambam writes, “Who is a spy? One who hears words and goes from this one to that one, saying, ‘This is what so-and-so said, this is what I heard about so-and-so.’” Thus, according to both Rashi and Rambam, the prohibition is not in finding out the information but in revealing it to others.

Second, a web search only discloses publicly available information. In halachah, a gossip refers to one who intentionally goes into people’s houses to observe them and then reports what he has seen. Thus, seeking out information that is readily available to the public would not seem to constitute the halachically impermissible act of gossiping.

Despite these arguments, I believe that engaging in a web search that discloses private information not available from a casual “Googling” is a halachically questionable activity. Why is this so?

First, there are those who maintain that gossiping does not only apply to disclosing information to others, it also applies to disclosing information to oneself. When asked about reading someone else’s private letter (something prohibited to Ashkenazim under the ban of Rabbeinu Gershom), Rabbi Yaakov Hagiz, in his well-known responsum of the seventeenth century, writes that this would be a transgression of rechilut. “What difference does it make if he goes about as a spy to reveal something to someone else or to himself?” (Hilchot Ketanot 1:276). Rabbi Hagiz’s ruling relates to the outcome of the act: becoming cognizant of someone’s private information. According to Rabbi Hagiz, it is rechilut, as there is no difference between revealing something to others and revealing something to oneself.

Second, the argument that the information is easily available to the public is refutable. For this, I draw from the laws of hezek reiah—damages through seeing. A protracted discussion in the first chapter of tractate Bava Batra concludes that hezek reiah—defined as being in a position to scrutinize the private activities of a neighbor—is considered a kind of damage or tort, which the offending neighbor must take steps to prevent. The gemara (Bava Batra 6b) objects that an offending neighbor could claim that passersby are ultimately able to see the same kind of activities that he is required to take steps to avoid seeing. The gemara answers with the justification of the protected neighbor, among them: “Passersby see me only if they look carefully; you see me in any case.” On this basis, the halachic authorities draw a distinction between casual seeing—which is not considered harmful—and scrutinizing or actively looking.

For example, the Rema (SA, Choshen Mishpat 144) writes explicitly that one must take precautions not to look (lehistakel) into his neighbor’s house; it is understood that occasionally he will see what goes on there. The hezek reiah approach focuses on the process—snooping around in someone’s private domain—irrespective of the outcome.

Both of these sources can be applied to the case of the weblog. The case discussed by Rabbi Hagiz is essentially identical to that of reading someone’s diary, so clearly he would view it as forbidden. I think it is obvious that scrutinizing someone’s diary would likewise cross the line from casual “seeing” to “looking.” What about the cyberspying example cited above? According to Rabbi Hagiz, it is clear that the outcome is revealing a person’s private information and would therefore be forbidden.

What about the process? I think it makes sense to distinguish between a routine Google search or visit to a person’s Facebook page and a determined, sophisticated use of powerful online tools which cross the line from casual “seeing” to “looking” online and would therefore be forbidden.

The example I used is an extreme one of utilizing seemingly public information and powerful online tools to disclose the identity of a blogger who has taken pains to maintain his privacy. But my belief is that there are many lesser examples where legitimate curiosity can easily cross the line into unwitting cyber-transgression.

Rabbi Asher Meir is a senior lecturer in economics at the Jerusalem College of Technology. He is the author of The Jewish Ethicist (New Jersey, 2003) and Meaning in Mitzvot (Jerusalem, 2005). He writes and lectures frequently on the application of Jewish law and ethics to contemporary ethical dilemmas in the marketplace.

This article was featured in the Winter 2014 issue of Jewish Action.
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