The right to privacy – should we allow prying and spying?

Today’s difficult era seems to have bred its informers who feel they have a right to spy on prayer gatherings and Seder observances and report them to the authorities.

It happened with certain people in the United States who accused Jared and Ivanka Kushner of breaching guidelines on Pesach. It happened in my street in Jerusalem last Shabbat morning when a few neighbors gathered to pray.

Of course it’s true that everyone should take the rules seriously, not least those who hold public positions, but it is unpleasant – to say the least – when sneaky people make mischief. Whether guidelines were breached is one thing; turning oneself into a sneak is another. The times are hard for all of us, but it makes them harder to see self-appointed spies and sneaks.

A bigger and more serious problem is the genuine defenders of people’s rights. Their problem is the ethical aspects of possible prying by officialdom into where citizens have been and what they have been doing.

The advocates of privacy should not be mocked when they question the apparent invasion of people’s private space which may be involved in tracing the spread of the virus – but with respect, they are wrong to fight this battle at this time. Shakespeare said, “Methinks the lady doth protest too much”.

The Fourth Amendment to the US Constitution, 1791, affirms citizens’ right to be secure in their “persons, houses, papers, and effects”, later called “the right to be let alone”. In the early days some legal systems only allowed redress if one’s material interests were at risk but Justice Louis Brandeis of the US Supreme Court wanted to assert privacy as a moral right though the courts at first used “property” terminology.

Privacy as an independent moral and legal concept has long been part of Jewish law. The Ten Commandments (Ex. 20) established a duty to refrain from disturbing another person, and established that the ban on murder, stealing, adultery, false witness and coveting implied a right to enjoy life, property, marriage, reputation, dignity and identity.

In Jewish law, a lender cannot barge into a neighbor’s house to collect a pledge (Deut. 24:10-11). No-one, not even a court officer, can enter any premises without permission (Bava Kama 27b). The rights of the individual always have to be respected (Bava Metzia 113a/b). People are not allowed to reveal secrets (Lev. 19:21; Prov. 11:13) or disclose court discussions (Mishnah Sanh. 3:7; Sotah 31a). On the words, “How goodly are your tents, O Jacob: your dwelling-places, O Israel” (Num. 24:5), Rashi says that no-one may peek into the opposite tent. One must not pry into another person’s affairs, since “damage by seeing is real damage” (Bava Batra 2b).

There are two parties to invasion of privacy, me and my neighbor. I must protect myself; I must protect the other person. I must not force him to hide away or conceal what he is doing. Me’iri (13th cent.) says people should keep their voices low if they don’t wish to be overheard; in a technological age the slightest whisper cannot be kept secret.

Seeing, hearing, and others of the five senses are threats to privacy. This covers electronic eavesdropping, wiretapping, reading other people’s correspondence, or using stored data. All are forms of invasion, even if the person who acquires the information does not act upon it, either for his own benefit or for the detriment of another.

Yet the right to privacy is not absolute. Though we must not intrude upon people’s lives for commercial benefit, entertainment, or mere titillation, the law may require disclosure of information which has a direct, serious bearing upon public policy.

The Bible says, “If one does not tell, he bears (a share in) the iniquity” (Lev. 5:1). Yet the telling must be at the appropriate time: “’Do not tell’ applies until I say, ‘Go, tell!’” (Yoma 4b). Surely the current crisis is one of the times when the sheer survival of civilization requires “Go, tell!”

Judaism dislikes counting people, and privacy is one of the reasons. Nobody is a mere clone. Everyone is entitled to be themselves. Everyone has the right to be secure and let alone, to hold on to their identity, to be able to bring their own blessing to the world.

But today is unfortunately not one of those times when we can all be entirely let alone if that would mean endangering our own or other people’s lives.

No, we don’t need mean-minded people to grass on others. We don’t need well-meaning advocates of ethics to say that the right to privacy is inviolable. We need an independent, speedy-acting ethical Ombudsman to monitor, supervise and assess what is done (or not done) in the name of the nation, but we all have to be the adult in the room and recognize that there are times to allow apparent invasions of privacy. Anything else puts all of us at risk.

There must be times when we have to give in; later on, if we wish, we can argue it out academically.

About the Author
Rabbi Raymond Apple was for many years Australia’s highest profile rabbi and the leading spokesman on Jewish religious issues. After serving congregations in London, Rabbi Apple was chief minister of the Great Synagogue, Sydney, for 32 years. He also held many public roles, particularly in the fields of chaplaincy, interfaith dialogue and Freemasonry, and is the recipient of several national and civic honours. Now retired, he lives in Jerusalem.
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