Internet, Privacy, and Progressive Halakhah

and conceptual constructions are often presented in the form of general principles. 127 When the academic scholar relies upon principles, in other words, he does 126 For a strong statement of this view see Shalom Albeck’s introduction to his Dinei mamonot batalmud (Tel Aviv: Dvir, 1976), pp., 13-31, translated in Jackson (note 118, above), pp. 1-20. That law should embody the characteristic of coherence is an element of Ronald Dworkin’s conception of “law as integrity”; Dworkin, Law’s Empire (note 114, above), p. 211. This, of course, presumes that law is necessarily coherent, a presumption challenged by Andrei Marmor (note 125, above), p. 70. 127 For general discussion see my “The Woodchopper Revisited: On Analogy, Halakhah, and Jewish Bioethics,” in Walter Jacob, ed., Medical Frontiers and Jewish Law (Pittsburgh: Solomon B. Freehof Institute of Progressive Halakhah, 2012), pp. 1-62, not diverge from the path of the rabbi, as Englard insists; he actually follows the rabbi’s lead. Principles –what some have called “meta-halakhah” 128 no less than discrete rules, are essential to the working of the Jewish legal system, and the phenomenon called “halakhah” does not exist and cannot be understood without reference to them. [115] If principles are an important functioning element in halakhic thought, then Englard’s second objection to mishpat ivri scholarship loses much of its sting. A scholar’s claim that the halakhah includes general principles as well as discrete rules is well-founded in legal theory and is hardly evidence of a “value judgment” on her part. Moreover, while scholarly objectivity certainly ought to be the goal of every area of academic discourse, one ought not insist upon a super-human standard of that goal. As Menachem Elon asks rhetorically in his response to Englard, “in the humanities and the social sciences and the legal sciences is it possible to conceive pure objective scientific research without some degree of value-judgment deriving from the Weltanschauung of http://huc.edu/sites/default/files/people/washofsky/The%20Woodchopper%20Revisited.pdf ). Let one example suffice to illustrate the phenomenon here. In B. Bava Batra 47b-48a, the Talmud seeks a theory to explain Rav Huna’s statement that a coerced sale of property is legally valid. How does such a transaction not violate the law’s general provision that the seller must freely consent to the sale? An attempt is made to analogize his case to that of a husband who is coerced by the court into issuing a divorce to his wife, even though the law of the Torah explicitly requires that the husband freely consent to a divorce. If coercion does not contradict the fact of consent in the divorce case, perhaps it does not contradict it in the sale of property case. The Talmud, however, rejects the analogy. The divorce case is explicable by the principle that “it is a mitzvah to heed the words of the sages,” i.e., the court that requires the divorce: since one is obligated to obey the law and since one arguably wishes to do so, we can say that consent to the divorce, though elicited by pressure, is consistent with one’s “true” wishes (see Yad, Gerushin 2:20). This principle does not apply, obviously, to the sale of personal property, which involves no religious obligation. Note that the Talmud invokes a general principle to illuminate the differences between the cases and hence to reject the analogy. 128 The term was first coined, it would seem, by the rabbi and philosopher Eliezer Goldman in a lecture he delivered at the 5th Conference for the Study of Jewish Thought (Tel Aviv, 1958). By “meta-halakhah,” Goldman meant those principles and conceptions some of which are mentioned explicitly in the Talmudic sources while others are not that, while not part of what he called the positive halakhah, are absolutely necessary for halakhic thought to function at all. See Eliezer Goldman, Yahadut l’lo ashlayah, ed. Dani Statman and Avi Sagi (Jerusalem: Shalom Hartman Institute, 2009), pp. 15-37. For a collection of essays devoted to the subject see Avinoam Rosenak, ed., Halakhah, Meta-halakhah ufilosofiah (Jerusalem: Magnes, 2011). the scholar?” 129 We must also take care to define “objectivity” in a way that is appropriate to the discipline in question. While some disciplines legitimately aspire to a sort of wertfrei scientific rationality, in much legal scholarship the prescriptive and normative concerns of the scholar often and appropriately take center stage. “The point of an article about a judicial decision is usually to remonstrate with the judge for the conclusion reached and for the rationale adopted. The point of an article about a statutory provision or a regulation is to expose the errors made in drafting it, and to indicate what should have been done instead.” If the natural and social sciences characteristically adopt a descriptive stance, the legal scholar displays a “penchant for prescription.” 130 That is to say, the rigid distinction between is and ought, which constitutes the central dogma of the creed of scholarly objectivity, may be impossible to maintain with precision in legal writing, where the normative goal is entirely legitimate. Consider, once again, the Warren and Brandeis essay on the right to privacy: described as “the most influential law review article in history,” 131 it is normative to its very core. Its authors certainly did not hide their ideology or their value commitments. Rather, they proudly proclaimed them as a prolegomenon to their analysis of the law. Many of the other books and articles cited in the first part of this essay emerge from a similar commitment to the importance of privacy protection in the law or, in the case of Prosser and his [116] camp, to the importance of maintaining a strict-construction approach to the law’s interpretation. The authors are not shy about stating that normative commitment, even as they present their 129 Elon, in Jackson (note 117, above), p. 84. 130 Edward L. Rubin, “The Practice and Discourse of Legal Scholarship,” Michigan Law Review 86 (1988), pp. 1835-1905. The quotation is at p. 1848. 131 See at note 15, above. findings as the product of objective scholarly investigation. It should be no surprise, therefore, that the religious and ideological commitments of Nahum Rakover and his mishpat ivri colleagues shine through their doctrinal legal writing. For that matter, the work we undertake in the name of “progressive halakhah” owes its impetus and direction to our value perspective that the Jewish legal tradition can and ought to be interpreted and applied toward the attainment of liberal ends and purposes. 132 None of this, I hasten to add, means that objectivity is an empty or worthless concept. We can acknowledge the inevitable influence of perspective and value commitments upon a scholar’s work and yet continue to insist that there is a difference “between scientific research and apologetics, between research based on facts and data and expressions of mere wishful thinking.” 133 Clearly, a bit of pragmatic realism is called for here. While the ideal of scientific (wertfrei or “mathematical” might be better terms) objectivity is presumably beyond the reach of the flesh-and-blood human researcher, she is nonetheless capable of examining the data critically and of interpreting them in accordance with the “agreed-upon, if tentative, conventions” 134 that comprise the methodological canons of her discipline. We are certainly entitled to demand that legal scholarship adhere to such a standard. What more, indeed, can we ask of it? 132 The foregoing does not even begin to consider the “critique of methodology” offered by postmodernist theory, which emphasizes that, especially in the humanities and social sciences, the phenomena the scholars observe are more the products of construction than of discovery and that “reality” is contingent rather than essential, created by language and enjoying no independent existence outside the linguistic universe. The literature on the subject is vast. I offer my own summary of the debates over critical theory and their relation to law and halakhah in “Against Method” (note 13, above), at pp. 43ff (the section entitled “Halakhah as a Social Practice.”) 133 Elon (note 117, above), p. 84. 134 Moshe Rosman, “Writing Jewish History in the Postmodern Climate,” in his How Jewish Is Jewish History? (Oxford: Littman Library, 2007), p. 14. The Halakhah of Privacy in the Age of the Internet. My effort in the first section of this article was primarily descriptive. I surveyed the efforts of scholars working in both the Anglo-American and the Jewish legal traditions to construct a “right” or a “value” of personal privacy out of a welter of existing provisions of the law. In part 2, I took on an evaluative function, arguing that this sort of constructive interpretation is a legitimate move in both traditions. Jurists and halakhists are entitled to derive new legal substance on the basis of recognized fundamental principles of law, using those principles to bring coherence and purpose to the “data,” the mass of rules, precedents, and facts contained in the[117] legal sources. To be sure, the results of this sort of constructive interpretation are not necessarily “correct.” As our discussion of objectivity in legal studies suggests, the contention that the law or the halakhah ought to be read in one way or another is always open to debate and to refutation. 135 Nonetheless, it is precisely the task of the legal scholar to make such arguments. Those of us who study Jewish law, in short, have every right to make the case that the halakhic sources support a value called “personal privacy.” In Part 3, I turn to a consideration, from the standpoint of progressive halakhah, of the implications of the preceding sections. If the halakhah does recognize a value of personal privacy, what would that recognition specifically entail? What would be the content, of the Jewish law of privacy? Does that specific content change in the age of the Internet? Does the advent of the era of digital communication pose a set of challenges to personal privacy that differ 135 As Nachmanides famously observed in his Introduction to Sefer Milchamot Hashem, which appears at the beginning of most folio editions of the Babylonian Talmud, the truths of “Talmudic science,” unlike those of mathematics or astronomy, are not subject to demonstrative proof. As the products of persuasive argument, they partake of the realm of probability and reasonability rather than that of hard fact. essentially from those with which we have long been familiar? And, if so, what lines of response ought we to pursue? In many respects, the halakhic approach to privacy would likely parallel the themes we encounter in general legal discourse, in which privacy law has assumed a largely defensive posture; its focus has been the protection of the individual’s home, persona, effects, and “private space” against unwarranted intrusion from other individuals, institutions, and governments. And to the extent that they have addressed themselves to such issues, progressive halakhists have in their responsa been quite vocal in the defense of personal privacy on Jewish legal grounds. 136 Consider, as an example, the following case, submitted to the CCAR Responsa Committee. 137 A rabbi is about to be tested for the genetic condition known as Huntington’s disease. If he tests positive, is he under an ethical obligation to share that information with his congregation and with any potential future employers? The Committee replied that the answer requires a balance between two halakhic values: on the one hand, the demand for integrity and the prohibition against deceitful conduct (g’neivat da`at), which would argue in favor of full disclosure of the rabbi’s health information, and on the other hand “the concern which our tradition voices for [118] the privacy of the individual,” which would justify the rabbi’s decision to withhold that information from his employers. The Committee concluded that, as a rule of thumb, “respect for privacy takes precedence over the sharing 136 For the CCAR Responsa Committee, see Teshuvot for the Nineties (note 107, above), no. 5750.4, pp. 187-190 (on the prohibition of lashon hara even within the context of marital communication) and Reform Responsa for the Twenty-First Century, Volume 1, no. 5756.2 (see note 57, above). See also Walter Jacob, ed., Contemporary American Reform Responsa (New York” CCAR, 1987), no. 46, pp. 79-80, on the “privacy of a convert.” On the latter topic, see also Reform Responsa for the Twenty-First Century, Volume Two (note 57, above), no. 5760.6, pp. 85-92. For the Committee on Jewish Law and Standards of the Rabbinical Assembly, see Dorff and Spitz (note 57, above). 137 Reform Responsa for the Twenty-First Century, Volume 1, no. 5756.2 (note 57, above). of personal information in most cases. Those who seek to acquire and to make use of information concerning other persons must meet a fairly rigorous burden of proof in order to be permitted to do so.” That burden of proof can be met, most obviously, in situations of real and present danger, since the protection of human life (pikuach nefesh) outweighs most other ethical and legal obligations. 138 In the present case, the Committee ruled that the possibility that the rabbi might one day develop Huntington’s disease does not meet that burden of proof. So long as the rabbi can provide assurances to a congregation or other employer that he can perform the duties of his position during the term of his contract, he is under no obligation to reveal confidential medical information. The implication, clearly, is that the employer is not entitled to that information and that it would be wrong to demand such a disclosure, let alone to seek out that information without the rabbi’s knowledge. To do so would be an unwarranted invasion of personal privacy. This stance by our halakhists is paralleled by that of our progressive Jewish institutions, which have for decades adopted this approach in their public advocacy on behalf of privacy legislation. They have repeatedly called upon government, business and society to take steps to safeguard personal privacy against unwarranted intrusion of all sorts, including the electronic and Web-based variety. 139 Their record has been a 138 The decision in such cases, of course, will involve the drawing of a difficult and sensitive balance between the degree of danger and the privacy interests of the individual. See, for example, Teshuvot for the Nineties, (note 102, above), no. 5750.1, pp. 103-110, on the question of mandatory testing for the HIV virus. 139 The following are some examples; they do not constitute an exhaustive list. The CCAR, the professional association of Reform rabbis in North America, has gone on record in opposition to government-sponsored invasions of personal privacy in 1975 (http://ccarnet.org/rabbis-speak/resolutions/1975/privacy-1975/ , accessed July 3, 2014) and 1976 (http://ccarnet.org/rabbis-speak/resolutions/1976/privacy-1976/, accessed July 3, 2014 ). The Union for Reform Judaism adopted a resolution on “privacy and surveillance” in 1971 (http://urj.org//about/union/governance/reso//?syspage=article&item_id=2213 , accessed July 3, 2014), on distinguished one, although the rapid development of new and advanced digital technology, with the attending examples of hacking, data fraud, and identity theft, means that they should certainly maintain their vigilance. I would argue, however, that this accepted rhetoric of privacy, which emphasizes the defense of the individual against unwanted surveillance of his or her personal affairs, whether the intruders be governments, businesses, or hackers, is by itself an inadequate [119] response to the contemporary challenge. The Internet age has introduced a new range of threats to our privacy. Our concern is no longer exclusively with old-fashioned sorts of intrusion the peeping Tom, the prying journalist, the wiretapper, and the electronic eavesdropper whose trespasses originate from without but increasingly with the newer forms of intrusion that emerges from within, that we ourselves facilitate and allow into our personal space. The Internet enables us to upload as well as to download, to produce as well as to consume digital content. Its technologies, particularly the new social media, permit and entice us to transmit a great deal of personal data to an electronic realm over which we exert very little control, a social network where our lives of necessity become an open e-book. This is the difference that the Internet makes, the unique threat that the World Wide Web poses to our privacy: its invitation to live our lives increasingly online and in public, to the point that we might be said to have waived any “reasonable expectation” of privacy 140 and, indeed, to have rendered that concept “privacy and national security” in 1984 (http://urj.org//about/union/governance/reso//?syspage=article&item_id=2103, accessed July 3, 2014), and “privacy and freedom of information” in 1976 (http://urj.org//about/union/governance/reso//?syspage=article&item_id=2168, accessed July 3, 2014). A resolution on “Internet privacy” was adopted by the North American Conservative movement’s Rabbinical Assembly in 2011 (http://rabbinicalassembly.org/resolution-internet-privacy , accessed July 3, 2014). 140 See at notes 11-12, above. essentially meaningless. If in fact we enjoy “zero privacy” in the age of the Internet, 141 the blame lies not solely or even primarily with unwanted, external intruders but with ourselves. Any cogent and coherent halakhic discussion of privacy in the age of the Internet will accordingly have to advance beyond the conceptual boundaries that have heretofore defined the subject. The current halakhic discourse on privacy, much like that in Western law, speaks mostly to the protection of the individual from damage caused by others invading his personal realm. The new discussion of which I speak will have to focus upon protecting the individual from the damage that he brings upon himself. It will have to acknowledge that we will not make much headway in protecting our Internet privacy from the unwanted attention of others without first addressing our own conduct. And here is where it really does help to be Jewish, for the very same fundamental principles that lie at the base of the traditional halakhic discourse on privacy also provide us with the intellectual resources needed to frame an adequate response for the challenge of our time. I refer, [120] in particular, to the concepts of modesty (tzniyut) and of human dignity (k’vod hab’riyot). It is to these principles we must appeal in the name of safeguarding our personal privacy in the current technological environment. Let’s begin with tzniyut, which as we have seen is cited as the basis for several of those existing “privacy” provisions of Jewish law. The concept, to be sure, can be a problematic one for liberal Jews. Today, we tend to associate the word tzniyut with the set of rules, social mores, and customary practices that comprise the particularly Orthodox definition of “modesty” in the relationship between the sexes. That definition 141 See at notes 6-8, above. diverges sharply from progressive values, based as it is upon assumptions of specific gender roles that we do not share. 142 Yet tzniyut extends far beyond the realm of sexual conduct. The term speaks as much of “restraint” as of modesty, expressing the value of moderation and humility in all spheres of personal behavior. Its linguistic root appears in the famous injunction of the prophet Micah (6:8) to “walk humbly (hatzne`a lekhet) with your God.” The humility of which that verse speaks, according to its Talmudic interpretation (B. Sukah 49b), concerns neither gender norms nor sexual modesty but the conduct expected of us when we bury the dead, escort the bride to the hupah, and (by extension) when we give tzedakah to the poor. The commentators understand this as an exhortation to personal restraint: one should perform these and, indeed, all other mitzvot humbly and with moderation, so that one does not draw unnecessary attention to oneself. 143 This theme of restraint – the word “stringency” might also fit 144 applies precisely to our subject. Tzniyut is the Jewish value that teaches us to practice restraint in self-expression, to behave mindfully and moderately when online, to think carefully before we share our lives with the denizens of the virtual universe, to consider the potential outcome of our actions before we post, upload, blog, text, or tweet. There is nothing essentially illiberal or non-progressive in this message; in fact, there is much we can and ought to learn from it. Accordingly, it is essential that we liberal Jews recover this value and make it our own, that we develop a specifically liberal Jewish discourse 142 For a classic description of the expectations that tzniyut places upon females as opposed to males see Yad, Ishut 24:12ff. 143 Rashi, B. Sukah 49b, s.v. hotza’at hamet; She’iltot d’Rav Achai, she’ilta 3. 144 See M. Kilyaim 9:5, M. Demai 6:6, and M. Ma`aser Sheni 5:1, where the title “tznu’im” is applied to those who are careful and stringent in their performance of mitzvot (see Rambam and Bartenura to all three mishnayot). [121] and teaching concerning hilkhot tzniyut, the rules of self-restraint in social and personal behavior. Some encouraging efforts have already been made in this direction, 145 with more, hopefully, to follow. The argument here is that we have little choice but to do so. To protect what is left of our personal privacy in the age of the Internet, we must practice the traits of tzniyut. We must learn to restrain our tendency to live our lives increasingly in the virtual world, to share the facts and photos and data of our lives with the universe that lies on the other side of our computer and smartphone screens. Yet tzniyut by itself is insufficient; the principle of k’vod hab’riyot is, for two reasons, its necessary complement. First, as I have argued, “human dignity” is the fundamental principle that undergirds the entire discussion of privacy in the halakhah. Without a substantive sense of what our “dignity” requires of us, it is unlikely that we will value our privacy enough to take concrete steps to protect it. Second, to speak of the need for “self-restraint” may raise concerns among some in our community. Since the 18 th century, liberal political thought has stressed the importance of such values as individual liberty and freedom of expression, and to the extent that we liberal Jews share in this outlook, we are rightly disturbed by the admonitions of those in political, social, or religious authority to “watch what we say,” even in the name of securing some important end. An objection of this sort would parallel the objection, cited above, 146 that some legal scholars have lodged against the “right to privacy” in the common law and in American constitutional discourse, namely that the enforcement of privacy rights is at some level 145 Two of these are: Lisa Grushcow, A Responsum on Synagogue Attire (Rabbinical Thesis, HUC-JIR, New York, 2003); and Loren Filson Lapidus, Tzniut in Reform Judaism and Its Educational Applications (Rabbinical Thesis, HUC-JIR, Cincinnati, 2008).