Does Jewish Law Permit Snooping To Prevent Terrorism?

NSA Scandal Raises Questions That Date Back Centuries

kurt hoffman

By David Golinkin

Published June 17, 2013.
  • Print
  • Share Share

As we now know, the National Security Agency has been engaged, for at least six years now, in massive surveillance of electronic communications in order to locate and apprehend terrorists. Opponents say that this is a case of the government spying on millions of innocent people without their knowledge, while those in favor say that the motive is to prevent a repeat of 9/11 and that saving lives takes precedence over privacy. What can Jewish law and tradition teach us about this ethical dilemma?

Rabbeinu Gershom Me’Or Hagolah (960–1028) is the reputed author of a series of haramot — literally, excommunications —governing various aspects of Jewish life. One of the haramot frequently attributed to him says, “One should not read his friend’s letter,” and some versions add, “without his knowledge and without his permission.” Indeed, until today some observant Jews write hdr”g , an abbreviation of “Herem d’Rabbeinu Gershom,” on the outside of their letters.

The original reason for this herem, or censure, is not known. Historian Louis Finkelstein suggested that since letters in medieval times were usually sent through private messengers, the purpose was to prevent the messengers from reading one’s mail. Some rabbis say that it is forbidden because of talebearing (Leviticus 19:16), or the commandment to “love your neighbor as yourself,” or “what is hateful to you do not do unto others.” One could argue that this herem applies to email, as well.

Furthermore, there are sources that prohibit the disclosure of confidential information or require the permission of the person in question before that information may be revealed. Proverbs 11:13 says, “A base fellow gives away secrets, but a trustworthy soul keeps a confidence.” The Mishnah uses this verse to teach that judges are not permitted to reveal their deliberations after a verdict is reached.

Finally, we read in the Talmud: “How do we know that when a person tells something to his friend, the latter may not repeat it until the person says to him ‘Go and say’? As it is written: ‘And God spoke to [Moses] from the Tent of Meeting to say….’” This means that one may not reveal a confidence without the express permission of the confider. Thus, it appears that Jewish law and tradition would prohibit an Internet provider from revealing electronic communications without the express permission of the person in question.

Unlike a letter that is sealed, however, it is not clear that electronic communications are actually considered private. There is a halachic concept of umdena, or a common assumption. Rabbi Alfred Cohen suggests that today there is a common assumption that telephone calls, emails and text messages are accessed readily by others and that the users have tacitly forfeited their right to privacy.

But even if the herem of Rabbeinu Gershom applies to email, Rabbi Yosef Karo has ruled in the Shulhan Arukh that the herem of Rabbeinu Gershom against having more than one wife may be overridden when it prevents the husband from performing a mitzvah. Rabbi Moshe Isserles concurs that “the same applies whenever it is a matter of setting aside a mitzvah,” though he adds that some say the opposite. Thus, it would seem that both Rabbis Karo and Isserles would say that we could override the herem of Rabbeinu Gershom regarding reading someone’s mail or email in order to perform a mitzvah.

And what mitzvah would allow the government to read our email? The mitzvah is that of pikuah nefesh, or saving a life, which takes precedence over the Sabbath, kashrut, Yom Kippur and almost all the mitzvot in the Torah. If pikuah nefesh takes precedence over biblical commandments, how much the more so does it take precedence over a rabbinic enactment from the Middle Ages?! If the NSA could have prevented the death of almost 3,000 innocent people on 9/11 via Internet surveillance, wouldn’t most people have been in favor of waiving the herem of Rabbeinu Gershom and allowing such surveillance?

Thus, as in many cases in Jewish law, there is no simple solution to this dilemma. Privacy is very important, but saving lives is even more important. If electronic surveillance saves lives and is also regulated by laws and the legal system, I believe that Jewish law would sanction such surveillance.

Rabbi David Golinkin is the president of the Schechter Institute of Jewish Studies in Jerusalem, where he is also a professor of Jewish law. The views expressed here are his own.


The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.





Find us on Facebook!
  • Is Twitter Israel's new worst enemy?
  • More than 50 former Israeli soldiers have refused to serve in the current ground operation in #Gaza.
  • "My wife and I are both half-Jewish. Both of us very much felt and feel American first and Jewish second. We are currently debating whether we should send our daughter to a Jewish pre-K and kindergarten program or to a public one. Pros? Give her a Jewish community and identity that she could build on throughout her life. Cons? Costs a lot of money; She will enter school with the idea that being Jewish makes her different somehow instead of something that you do after or in addition to regular school. Maybe a Shabbat sing-along would be enough?"
  • Undeterred by the conflict, 24 Jews participated in the first ever Jewish National Fund— JDate singles trip to Israel. Translation: Jews age 30 to 45 travelled to Israel to get it on in the sun, with a side of hummus.
  • "It pains and shocks me to say this, but here goes: My father was right all along. He always told me, as I spouted liberal talking points at the Shabbos table and challenged his hawkish views on Israel and the Palestinians to his unending chagrin, that I would one day change my tune." Have you had a similar experience?
  • "'What’s this, mommy?' she asked, while pulling at the purple sleeve to unwrap this mysterious little gift mom keeps hidden in the inside pocket of her bag. Oh boy, how do I answer?"
  • "I fear that we are witnessing the end of politics in the Israeli-Palestinian conflict. I see no possibility for resolution right now. I look into the future and see only a void." What do you think?
  • Not a gazillionaire? Take the "poor door."
  • "We will do what we must to protect our people. We have that right. We are not less deserving of life and quiet than anyone else. No more apologies."
  • "Woody Allen should have quit while he was ahead." Ezra Glinter's review of "Magic in the Moonlight": http://jd.fo/f4Q1Q
  • Jon Stewart responds to his critics: “Look, obviously there are many strong opinions on this. But just merely mentioning Israel or questioning in any way the effectiveness or humanity of Israel’s policies is not the same thing as being pro-Hamas.”
  • "My bat mitzvah party took place in our living room. There were only a few Jewish kids there, and only one from my Sunday school class. She sat in the corner, wearing the right clothes, asking her mom when they could go." The latest in our Promised Lands series — what state should we visit next?
  • Former Israeli National Security Advisor Yaakov Amidror: “A cease-fire will mean that anytime Hamas wants to fight it can. Occupation of Gaza will bring longer-term quiet, but the price will be very high.” What do you think?
  • Should couples sign a pre-pregnancy contract, outlining how caring for the infant will be equally divided between the two parties involved? Just think of it as a ketubah for expectant parents:
  • Many #Israelis can't make it to bomb shelters in time. One of them is Amos Oz.
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.