We all know that spying and eavesdropping are wrong. But how should the law address the personal and social impact of potentially invasive technology? From smartphones and home devices to internet tracking, the line between private and public has been blurred. Learn and discuss how debates in Jewish law inform this topic.
מַה־טֹּ֥בוּ אֹהָלֶ֖יךָ יַעֲקֹ֑ב מִשְׁכְּנֹתֶ֖יךָ יִשְׂרָאֵֽל
(2) As Bilam looked up and saw Israel encamped tribe by tribe, the spirit of God came upon him. ... (5) How fair are your tents, O Jacob, Your dwellings, O Israel!
GEMARA: The Gemara asks: From where are these matters, i.e., that one may not open an entrance opposite another entrance, or a window opposite another window, derived? Rabbi Yoḥanan says that the verse states: “And Bilam lifted up his eyes, and he saw Israel dwelling tribe by tribe; and the spirit of God came upon him” (Numbers 24:2). The Gemara explains: What was it that Bilam saw that so inspired him? He saw that the entrances of their tents were not aligned with each other, ensuring that each family enjoyed a measure of privacy. And he said: If this is the case, these people are worthy of having the Divine Presence rest on them.
מאי יליף דהזק ראיה הוי הזק הא זהו מטעם קדושה אבל בלא"ה אימא לא שמיה הזק ופירש הרב ז"ל במ"ש ז"ל דהזק ראיה היינו כשהאחד קדם אבל שנים פותחים בבת אחת אין א' יכול למחות דכל אחד יאמר כשם שאתה פותח עתה גם אני אפתח ופותחים שניהם
What is the proof from here that damage from sight is actionable (היזק ראיה שמיה היזק)? This is about sanctity, not civil law! It is indeed not actionable when two contribute equally to the diminution of privacy, as was the case here, but since the value of privacy has been demonstrated, its diminution is actionable if one party is responsible.
MISHNA: Partners who wished to make a division in a jointly owned courtyard build the wall for the partition in the middle of the courtyard.
Since they wished to divide the jointly owned courtyard, they build a proper wall in the center even against the will of one of the partners. Apparently, it may be concluded that damage caused by sight is called damage, i.e. is actionable.
The Gemara suggests: Come and hear an additional proof that damage from sight is actionable, from what is taught in a mishna (7b): The residents of a courtyard can compel each inhabitant of that courtyard to financially participate in the building of a gatehouse and a door to the jointly owned courtyard, so that the courtyard not be open to the eyes of those standing in the public domain. Learn from it that damage from sight is called damage. The Gemara answers: This is not a proof to the case of two neighbors, as the damage of being exposed to the gaze of the general public, which has unimpeded sight of what is happening in the courtyard, is different and certainly actionable.
The Gemara further suggests: Come and hear another proof that damage from sight is actionable from what is taught in a mishna (22a): One who desires to build a wall opposite the windows of a neighbor’s house must distance the wall four cubits from the windows, whether above, below, or opposite. ...Concerning the requirement of a distance above, the wall must be high enough so that one cannot peer into the window and see into the window... This indicates that there is a concern about the damage caused by exposure to the gaze of others. The Gemara rejects this argument: The damage of being exposed to the sight of others while in one’s own house is different, as people engage in activities in their homes that they do not want others to see. By contrast, a courtyard is out in the open and it is possible that the residents are indifferent to being observed.
Me'iri on Bava Batra 2a
As long as the damage from sight is remedied, the type of wall required follows local custom, even if that is a very thin wall. And we are not concerned about damage from hearing at all, meaning even if sound passes around or through the wall, because people are generally careful about what they say.
Shulchan Aruch Harav, Laws of Monetary Damage 11
It is prohibited to covertly observe the activity that another person does in their house or on their property, because they may not want others to know what they're doing. Therefore, poor people who divide a courtyard but can't afford a wall to prevent visual trespass should accept charity in order to build a minimal wall. If that's not an option, they should be careful to the best of their ability not to look at what the other is doing in the courtyard.
It's unnecessary to say that it's prohibited to peer into someone's courtyard without their knowledge, and even more obviously into their house. This applies even if they know they are being observed and don't protest, because they may just be embarrassed to say anything. Even when one's neighbor gives permission to make a window overlooking their courtyard, the permission is presumably intended only for the light. It is still prohibited to stand at the window and observe the neighbor's courtyard.
Shulchan Aruch Harav, Laws of Monetary Damage 12
Some say that a person must be careful not to stand in front of the entrance to another's house or courtyard such that one can see inside even momentarily, even without intending to observe their activities. Rather, in such a situation one should turn one's head so as not to be suspected of observing, since there is no good reason for doing so. Even passers-by on the street are not permitted to stop and look; only momentary glances which are impossible to avoid are not a concern.
Teshuvos Maharam MiRottenberg
A ban was issued by Rabbeinu Gershom not to look at a letter of one’s friend that was sent to another friend, without his knowledge.
Do not go about as a gossip — the word for "gossip" is related to the word for "spy" because all those who sow discord between people and all who speak negative gossip go into their friends' houses in order to spy out what evil they can see there, or what evil they can hear there so that they may tell it in the streets
Teshuvos Halachos Ketanos, Volume 1 Siman 276
Not only is it considered gossip to talk about others, it is also gossip to seek out other's private information even if you do not disclose it to anyone else. This is called "gossiping to one's self." This is also violating the Torah prohibition of (Vayikra 19:16) "do not go about as a gossip among your people."
Responsa of the Rashba, Volume 1 Siman 557
Rabbeinu Gershom did not make his decrees so that people might violate Torah or Rabbinic law because of them. Just the opposite, they were instituted only to insure compliance with our Torah and to insure that Jewish people act in a correct and modest manner. Therefore, if a court objectively determines that in a certain situation they can only insure compliance with our law by "violating the privacy" of an individual by reading their mail, there is no doubt that Rabbeinu Gershom would agree that it would be a mitzva to do so.
The Gemara relates: There was a certain student, about whom a rumor emerged that he revealed a statement that was stated in the study hall and should have been kept secret, and the rumor emerged twenty-two years after the time the statement was revealed. Rav Ami removed him from the study hall as a punishment. Rav Ami said: This is a revealer of secrets and he cannot be trusted.
The Sages taught in a baraita: The wood gatherer mentioned in the Torah was Zelophehad, and it says: “And the children of Israel were in the desert and they found a man gathering wood on the day of Shabbat” (Numbers 15:32), and below, in the appeal of the daughters of Zelophehad, it is stated: “Our father died in the desert and he was not among the company of them that gathered themselves together against the Lord in the company of Korach, but he died in his own sin, and he had no sons” (Numbers 27:3). Just as below the man in the desert is Zelophehad, so too, here, in the case of the wood gatherer, the unnamed man in the desert is Zelophehad; this is the statement of Rabbi Akiva.
Rabbi Yehuda ben Beteira said to him: Akiva, in either case you will be judged in the future for this teaching. If the truth is in accordance with your statement that the wood gatherer was Zelophehad, the Torah concealed his identity, and you reveal it. And if it the truth is not in accordance with your statement, you are unjustly slandering that righteous man.