Does Judaism Have a Position On Privacy?
At the same time, there’s been an uptick in the use of Torah as a progressive political tool (what is sometimes called social justice Torah), not just around perennial concerns (like workers’ rights and immigration), but specific policy questions, as well. Aryeh Bernstein’s recent argument for a halakhic backing of reparations is a good recent example of a bold, source-based attempt to have Judaism engage with a conversation about righting a specific wrong. (Calling it a new topic is a stretch, although it was given a major boost by Ta-Nehisi Coates’s 2014 article in The Atlantic.)
Against this background, it is surprising that privacy concerns in the internet age—which have technological, political, and policy ramifications—have been largely ignored by halakhists. This isn’t to say that nobody ever talks about Jewish legislation on privacy anymore. However, contemporary discussions (when they do occur) are retrospectives; if they use an event in the news, it is as a “news hook,” not because it is a problem to be solved with halakhic tools. Even these retrospectives have not really reacted to the massive uptick in privacy-related news. The Equifax breach did not unleash a slew of rabbinic hot takes or statements from the various rabbinical counsels; neither did the Cambridge Analytica scandal, despite the fact that Facebook has become a critically important modern forum for halakhic conversation/speculation. (If you recall, the last time an information technology—the printing press— affected the way in which rabbis disseminated their ideas, Jews had quite a bit to say about it.) Indeed, the most comprehensive “recent” work on computer privacy was written in 2001; it precedes both Facebook and smartphones.
Why this silence on privacy? There are a few potential answers. The most cynical is that privacy breaches are not compelling in the way that tax policy is compelling; as Daniel Solove recently argued, “most privacy problems lack dead bodies”—that is, privacy breaches often don’t result in obvious victims and so they do not garner sufficient outrage or pushes towards changes in policy, even when they occur on an absolutely massive scale (and even when the bad actors are corporations and idle legislators—actors who show up so frequently in other progressive Torah conversations). Both technology Torah and the Torah of social justice are largely reactionary; privacy lives in a blind spot for both of them.
A second possibility is that Judaism does not really think in terms of rights or, as Amit Gvaryahu has pointed out to me, it not built to recognize corporations as moral agents. (It is simply an irony that one of the foundational advocates for a right to privacy was Louis Brandeis). This may be true, but for most rabbis it’s a bad argument. While halakhah itself is not structured in terms of rights, the values-based halakhic hermeneutic which has been explicitly or implicitly adopted by so many liberal halakhists (both Orthodox and not) is in fact quite amenable to rights-based conversations; when someone puts together a source sheet on wage theft using Biblical sources that do not explicitly relate to contemporary situations, they are probably engaging in a rights-based conversation. In the engine of halakhic relevancy, rights are one of the most important lubricants.
A potential third reason for the silence is that internet privacy is just complicated. I simply don’t buy this; Jews have traditionally been quite good at understanding the details of new technologies when it is halakhically relevant. Technology-related laws are almost never based on a misunderstanding of the technology.
Nevertheless, halakhists have been more or less mum on this topic, despite that American attitudes towards privacy have real effects on people (not to mention elections). While each of the above-mentioned impediments can potentially explain the silence, I think all of them are of only peripheral importance. Instead, the silence on privacy matters has less to do with privacy and more to do with the deficiencies of social justice Torah as it currently exists.
What impedes growth is not the dearth of halakhic texts on privacy; rather, it is that Judaism does talk about privacy, but does so in ways that provide absolutely no helpful guidance for our circumstances. Witness, for example, Biblical and rabbinic texts about the placement of windows or the concept of “damage caused by looking.” These are good texts, but the devil is entirely in the details. Almost nobody thinks all information should be public or no information should be public. Figuring out what should and should not be kosher is the whole ball game; if you don’t have anything to say about the specifics, you might as well take your Talmudic quotations and go home. As a result, potential precedential texts are basically irrelevant for the modern conversation. They can support most any position that Americans care to espouse.
But to fill in the details requires stepping out beyond the bounds of what the tradition has already said, without recourse to the authority of ancient texts in the event of an attack on one’s position. It is also quite difficult, since the newness of these privacy concerns means that there are no best practices to consult; there are no shortcuts to deep thought here. We need Judaism to engage seriously in the realm of privacy law, but that can only happen with a level of personal authority and willingness to legislate creatively that exists almost nowhere outside of a select few Orthodox circles.
To talk about privacy in the modern setting, rabbis need to speak in prescriptive terms on these uncharted waters, understanding that Jewish tradition simply does not have texts whose authority they can present as decisive or sufficient for contemporary circumstances. No; Judaism is only going to deal with privacy law effectively if rabbis have confidence in their own personal halakhic prescriptive power.
To talk about privacy in the modern setting, social justice Torah also needs to be more systematic; it cannot simply stick to the modes of restating important truisms (e.g. “love the stranger,” “do not stand idly by your fellow’s blood”) or responding to specific policies. Alongside these critically important tasks, social justice Torah must also engage in the long-term work of formulating and disseminating frameworks for thinking about genuinely new issues. Halakhic thinkers should not wait to be asked (either by their congregants or by the headlines); neither should they wait until breaches become so significant that a “dead body”-level event occurs (in the realm of privacy, it may be only a matter of time until something so terrible happens).
Finally—and most importantly—social justice Torah’s engagement must not exist simply on the level of “this is allowed” and “this is not allowed.” The ethical questions that technology raises will not require the invention of new principles on the level of “treat your neighbor as yourself,” but they will certainly require the development of fundamentally original formulations of those basic principles.
In this religious and ethical void, Judaism—which is just about as technologically-forward as a millennia-old religion can be, which has not flinched in the face of scientific and technological advancements, whose embrace of technological change has encompassed prayer and even effected a fundamental and intentional change in the Torah study—has (for once!) the ability to speak with the voice of a first-adopter and not simply chime in its agreement to whatever broader ethical vision American society has come to through other means. There is new kind of chance here; let us make sure not to squander it with silence or timidity.