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.
On the other side of this equation stands another important Jewish principle: kevod haBriot, the preservation of human dignity. This principle first appears in the book of Leviticus (19:18) and is (rather awkwardly) translated into English as “Thou shalt love thy neighbor as thyself.”
The great sage Rabbi Akiva (circa 40 — circa 137 C.E.) declares it as a klal gadol, a grand rule, and another great sage, the famously pragmatic Hillel the Elder (circa110 BCE, died 10 C.E.), rephrases it as ”That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is the explanation; go and learn.”
This principle has served as the moral and legal base for many rabbinic debates around the question of privacy, and the obligation to respect it. The sages regarded eavesdropping on a private conversation or peeking into someone’s private domain as robbery or theft and defined them as genevat da’at — literally: “stealing of one’s mind” — an act of deceit or swindling.
But the most direct reference comes from an important, and formative, set of rabbinic rules and regulations known as the Herem de-Rabbeinu Gershom that was published in Germany around 1000 C.E. and became widely accepted in most of the Jewish world.
This herem (whose most famous contribution to Jewish life is the elimination of bigamy) explicitly forbids the pious to read a private letter without the knowledge and permission of the sender. This regulation is widely quoted and has become one of the foundations of the Jewish public sphere. The principal of regarding one’s privacy as a possession and the breach of it as a theft remains an organizing notion of Jewish ethics to the day. ‘
Unless one can prove without a doubt that hacking into someone’s email account or tapping his or her phone line will prevent a clear and immediate danger to human life, there is very little grounds for holding such an action as Jewishly legitimate.
Reuven Namdar, a New York-based Israeli writer and translator of Persian poetry is the author of “Haviv,” a collection of short stories, which won the Israeli ministry of culture’s award for best debut fiction.