As the drama of the massive National Security Agency tapping of telephone lines and surveillance of Internet sites keeps unfolding, it is fascinating to trace the fundamental questions at the heart of this story back to the early stages of Jewish ethical discourse.
It is tempting to think of the moral dilemma of national security versus the basic human right to privacy as modern. But in reality this debate has been going on for many centuries and has taken on many faces, some surprisingly liberal and some depressingly retrograde.
The main principal that will support taking extreme measures such as breaking into people’s email accounts and tapping their phone lines is what the rabbis called pikuach nefesh, the preservation of human life. This important Jewish moral value is usually quoted in positive and progressive contexts, such as the permission to break almost every rule of Jewish law in order to avoid even the slightest danger to human life.
One is permitted to desecrate the Sabbath, eat and drink on fast days, etc. — if it is proved that failing to do so will put one’s life in danger. A derivative of this elevated principal is the more complex (and dangerous) set of halachic debates called din rodef, the laws of a pursuer, which discusses the permissibility of using extreme measures in order to stop the rodef (the pursuer) from killing a nirdaph, the pursued or the victim).
This normally rather marginal set of rabbinic debates gained an unprecedented notoriety 18 years ago, with the shocking murder of Israeli Prime Minister Yitzhak Rabin. The convicted murderer, Yigal Amir, and the fanatical religious-right-wing circles that supported his deed quoted din rodef as their halachic and moral justification. In their opinion, Rabin’s peacenik policies imposed a clear and immediate danger on human (Jewish, really) life — thus turning him into a rodef, or a pursuer or murderer). Therefore, according to this logic, it was permissible, and even obligatory, to use all measures in order to stop him.
This very set of debates could come in handy if someone wanted to utilize rabbinic law in order to legitimize eavesdropping on reporters and other public officials. One would have to prove, or assume, that the information they are hiding poses a clear and immediate danger to human life — declaring them as rodefim and the breach of their privacy as an act of pikuach nefesh.