The Fourth Amendment to the US Constitution, dating from 1791, affirms a citizen’s right to be secure in their “persons, houses, papers, and effects.”
A century later this was labeled “the right to be let alone.” At that stage it had no legal status, though physical trespass (called in biblical law “hassagat gevul,” trespass on another’s territory) had long been identified as a legal wrong. Many legal systems allowed redress only if one’s material interests were placed in jeopardy.
The broader moral right to be let alone was not unknown but proved hard to define.
The courts sometimes dealt with it by means of “property” terminology and proceeded to assess the extent of quantifiable damage. Justice Louis D. Brandeis wanted a more straightforward approach and argued that one should be able to assert privacy directly. A concept of privacy is found in Roman law, but even earlier it existed as a legal and moral right in the Bible. The Ten Commandments established it negatively, as a duty to refrain from disturbing another person, and positively too, since the ban on murder, stealing, adultery, false witness and coveting implied a right to enjoy life, property, marriage, reputation, dignity and identity.
Among specific provisions, a lender was not allowed to enter a neighbor’s house to collect a pledge (Deuteronomy 24:10-11); the sages forbade entering any premises, even one’s own, without permission (Bava Kama 27b). This also applied to a court officer, implying that society may not harm the rights of the individual (Bava Metzia 113a/b). One may not reveal secrets (Leviticus 19:21; Proverbs 11:13) or disclose court discussions (Mishnah Sanhedrin 3:7; Sotah 31a). Even seeing into someone’s home is forbidden. On the words, “How goodly are your tents, O Jacob: your dwelling-places, O Israel” (Numbers 24:5), Rashi says no-one should peer into the opposite tent.
In addition, one must not pry into another person’s affairs, since “damage by seeing is real damage” (Bava Batra 2b).
There are two main parties to the problem of invasion of privacy. I have no right to disturb my neighbor, nor must he be forced to hide away or cover up his traces.
Damage by seeing is more obvious than damage by hearing; Me’iri (13th century) says people are more careful to keep their voices down when they don’t wish to be overheard, though this might be questioned these days, when the slightest whisper cannot be kept secret.
Seeing, hearing and others of the five senses are threats to privacy. This covers eavesdropping, wiretapping, reading other people’s correspondence or using stored data. All are forms of spying, 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 society must not intrude upon people’s deeds 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 he does not tell, he bears [a share in] the iniquity” (Leviticus 5:1). Yet telling must be at the appropriate time: “‘Do not tell’ until I say, ‘Go, tell!’” (Yoma 4b).
Professional privilege has narrower boundaries in Jewish than in civil law.
There is no sanctity of the confessional: no-one but God may have access to people’s secrets. If a person tells the rabbi something in confidence, the rabbi has no right to remain silent. Nor may the media say, “The public is entitled to know.” Intellectual property is a specialized area of privacy.
The general rule is, “He who cites a thing in the name of the one who stated it brings redemption to the world” (Mishnah Avot 6:6).
IN THE Holocaust, the victims had their privacy invaded, compromised, undermined and flouted in every possible way. Everybody became a nobody. Nothing meant anything – not their name, their identity, their dignity, their family, their learning, their possessions, nor even their history of service to the nation or to humanity.
There were distinguished people whose contributions to culture, science and civilization meant nothing; great intellectuals who were mocked as they were thrown into the gas chambers; many who became slave laborers or were used for “scientific” experiments; many whose bodies became soap or lampshades or whose gold teeth were torn out to enrich the Reich.
Not only were the victims “unpersons”; the enemy denied them the slightest protection of the law, while the world mostly stood by and said nothing. The church bells rang as normal; the perpetrators spent their nights with classical music; the world’s moral scruples were unruffled. The victims had no privacy by day or night. Yet few sought refuge in death. Most had faith in a final account and reckoning. Most sustained their belief, values, gentility and love for others.
There were Jews who risked all by sharing a morsel with others, supporting them in life and giving them a funeral when they died; Jews who determined that the enemy would not take away their souls, spirits or spirituality; Jews who knew that if they lost their sense of time they would lose everything, so they counted the days and knew when it was Shabbat or Yom Kippur. The persecutors didn’t care, but the Jews did.
There are ongoing efforts to ensure that the millions of victims do not remain mere numbers but once more gain a name, an identity, a face, a family. Every time a name is rediscovered, every time a Kaddish is said, every time a memory is rebuilt, a portion of privacy is restored.
Judaism dislikes counting people. Privacy is one of the reasons. Everyone is entitled to be themselves. Everyone has the right to be secure and let alone, to hold their own place in the sun, to be able to bring their own blessing to the world.
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