Facebook, along with other prominent Internet companies, has been much in the news lately. And the news is not good. The presenting issue is Cambridge Analytica, a voter-profiling firm that in 2014 harvested private information from over 87 million Facebook users without their permission. The event carries some significant political implications, given that two years later Cambridge Analytica would exploit this data while working for the U.S. presidential campaign of Donald Trump. At least as great, though, is the negative effect that such breaches, which one commentator calls “an abuse of a civic relationship,” may work upon the very concept of personal privacy, an idea central to the fabric of the modern liberal society. And even though some say that privacy today is either “dead” or no longer a “social norm“, many of us continue to think of privacy as an inalienable right, a sine qua non for the preservation of human dignity. Hence, the stated readiness of social media executives to accept greater privacy regulations, the movement in Europe to put some of those regulations into law, and the calls for competitors to arise and challenge Facebook’s domination of the market.
This blog doesn’t take sides on social or political issues – at least, not usually – but seeks rather to consider how Jewish law might have us think about them. So we would be remiss not to mention that the halakhah arguably does recognize the existence of a “right”[1] to privacy. An article in a recent publication of the Freehof Institute discusses this idea in detail. It focuses in part on the writings of scholars like Nachum Rakover, an Israeli law professor and student of Jewish law (mishpat ivri) whose 2006 volume The Protection of Individual Privacy[2] is a pioneering achievement in the field. Rakover “discovers” a right to privacy[3] in Jewish law in much the same way that, over a century ago, Louis Brandeis and Samuel Warren[4] “discovered” such a right in the Anglo-American common law. They contended that various existing legal protections testify to the existence of a general principle[5] tantamount to a right to “individual privacy” even though the legal sources never explicitly mention that term. Just so, says Rakover, the existing halakhah offers similar protections: it forbids gossip and slander (r’khilut and l’shon hara) and various types of trespass into an individual’s domain, and it allows a person to be compensated for damage caused by prying eyes and perhaps by the overhearing of conversations. On this basis he concludes that Jewish law, too, protects “individual privacy.” We won’t reproduce Rakover’s argument in its entirety here; the aforementioned article offers sources, comment, and analysis. Suffice it to say that privacy, whether or not it is defined as a “right,” is most definitely a Jewish value, which means in turn that the failure of Internet companies to adequately safeguard the personal data of their users is most definitely a particularly Jewish concern.
Which raises the following question: does halakhah‘s approach to privacy differ from that of other legal and cultural traditions? Is there something uniquely or particularly “Jewish” in the way that Jewish law speaks of “privacy”? Rakover and others suggest that the Jewish value of privacy is based upon (among other sources) the value of tz’niyut, a word often translated as “modesty” but that can also (and better) be rendered as “moderation” and “self-restraint.” That is to say, privacy in Jewish law stems not from a social contract but from the manner in which we, as good Jews and as human beings striving for decency, ought to comport ourselves in the world. Privacy is thus not simply a right to be protected but a demand upon our personal conduct: yes, the government and the corporations must safeguard our personal data, but we as individuals must act in such a way as to defend the boundaries of intimacy that shield our private lives from the gaze of others. In this case, to live in accordance with tz’niyut means that each of us ought to behave mindfully and moderately when online, to think carefully before we share our lives with the denizens of the virtual universe, and to consider the potential outcome of our actions before we post, upload, blog, text, or tweet.
The public indignation over Facebook’s failures reminds us of the need for constant vigilance: we must insist that public and private institutions take swift and decisive action in defense of what remains of our online privacy. But the message of Jewish law is that even if privacy is not yet dead, it will survive in this brave new digital world only if we, personally, act so as to show that we deserve it.
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[1] The scare quotes indicate that the legal term “right” is not native to traditional Jewish law which tends to speak in terms of duties and obligations we owe to God and to other people rather than of rights to which we are entitled. We speak of “rights” here because that usage is familiar in Western law. (The modern Hebrew term that Israeli lawyers use for “right” – זכות, z’khut – is a translation of that Western legal concept and not an expression of a traditional Jewish one.) Still, with the proper caveats, the word can be helpful in conveying our intentions. For example, while Jewish law does not speak of a “right” to private property, it does know of prohibitions – איסורים, isurim – against theft and robbery, and it does impose a duty to restore lost or stolen property to its owner. Thus, the individual enjoys an actionable expectation that the legal possession of his/her property will be enforced. That’s close enough to a “right” to own, even if it’s not identical to it.
[2] ההגנה על צנעת הפרט, ירושלים, משרד המשפטים, 2006 . Significantly, the term he uses for “privacy” is not the modern Hebrew פרטיות, p’ratiyut, but rather tz’inat hap’rat, one that evokes the traditional Jewish value of “modesty” (צניעות, tz’niyut) that serves him as a basis for his construction of a “right to privacy” from the Jewish legal sources.
[3] See note 1: Rakover does not use the word “right” (z’khut), preferring to describe privacy as a “safeguarded value” (ערך מוגן, erekh mugan) in Jewish law.
[4] Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890), pp. 193-220. Rakover mentions the Brandeis-Warren article in his first footnote, and it is interesting to speculate on the degree to which their approach to legal interpretation and construction influenced his own in this case. See the article cited above, at footnote #77.
[5] For Brandeis and Warren, the general principle is that the common law recognizes that each person possesses an “inviolate personality” (“Right to Privacy,” p. 205), while for Rakover (n. 2, at p. 310) bases the Jewish legal right to privacy on “basic principles (ekronot b’sisi’im) concerning love of one’s neighbor, human dignity, and the safeguarding of one’s good name.”