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Corresponding Respect: Privacy In Personal Mail

Corresponding Respect: Privacy in Personal Mail

Rav Yitzchak Grossman Shlit”a, Dayan and Lecturer at the Bais HaVaad

Reading the Correspondence of Others

Parshas Shelach contains the tragic narrative of the spies sent to survey the Land of Canaan. While their task was to observe and to report their observations, a major component of modern espionage is signals intelligence, and communications intelligence in particular, with Henry L. Stimson’s celebrated distaste for the practice (“Gentlemen do not read each other’s mail.”) seen as laughably quaint. I am not aware of any significant discussion of the ethics of such intelligence gathering in the service of the national interest; this article explores some of the Halachah pertaining to such conduct in the context of the intercourse of private citizens.

The Cherem of Rabbeinu Gershom

There is a medieval tradition, generally attributed to Rabbeinu Gershom Me’or Ha’Golah, of a cherem [ban / anathema] against reading (or opening) a letter addressed to another.

The acharonim have additionally noted various halachic problems with reading others’ mail, either as rationales for the ban or as independent considerations:

  • The utilization of another’s property without permission is forbidden.
  • “Thou shalt love thy neighbor as thyself” – “that which is hateful to you, do not do unto your friend”.
  • “Thou shalt not go up and down as a talebearer among thy people”.
  • Geneivas da’as is prohibited. [The phrase generally refers to deception, i.e., the planting of a false idea in the mind of another, whereas our situation appears to be the exact opposite: the extraction of a true idea from the mind of another;
  • It is prohibited to cause harm to another, even indirectly (grama be’nezikin asur), and reading others’ correspondence usually causes harm, whether financial or otherwise.

Among the Sephardim, it was common to inscribe a reference to the cherem on (the outside of) letters, although the cherem applies regardless.

Is the Cherem Still In Effect?

There is a tradition that Rabbeinu Gershom’s ban on polygamy was only in force until the end of the fifth millennium, and some extend this to our cherem, too. The basic tradition with regard to polygamy itself, however, is not universally accepted, and our cherem in particular may have no expiration date, as unlike polygamy, which is perfectly permissible according to Biblical law, the reading of others’ mail may be prohibited to begin with, for the various reasons given above, and so Rabbeinu Gershom would not have included a sunset clause in his cherem.

Discarded Letters

Some of the medieval formulations of the cherem contain the dispensation that “if he has discarded it, it is permitted”, and this has been understood to mean that even if the discarding has not been directly observed, the mere fact of the letter being apparently abandoned allows us to conclude either that it has been deliberately discarded or that care was not taken to secure it, due to its not containing any confidential information. There is, however, an opinion that limits this to where the letter has been discarded in a publicly accessible place, where it is likely to be read, as this clearly indicates that the discarder is unconcerned with its being read, but where it has been placed into a private or even a public garbage can, the contents of which are generally unlikely to be exposed, as dumpster-diving is uncommon in contemporary times, there is no basis to impute such unconcern to the discarder.

Additionally, there is an opinion that forbids reading a letter found in the street, as even insofar as the recipient does not care if the letter is read, the sender may still care.

Unsealed Letters and Postcards

The poskim debate whether the cherem applies to unsealed letters and postcards; on the one hand, since the sender did not bother to seal his missive, he evinces unconcern with its being read, but on the other, perhaps he simply relies on general compliance with the cherem. Additionally, irrespective of the sender’s lack of concern, the addressee of the missive may object to third party perusal.

Permission of the Recipient

There is an opinion that permission from the recipient of a letter suffices to allow third party perusal; others maintain that permission from the sender is also necessary.

Extenuating Circumstances

There is an opinion that the cherem applies even in the face of a mitzvah. On the other hand, some maintain that just as Rabbeinu Gershom’s ban on polygamy may not apply in situations of mitzvah and aveirah, so, too, does our cherem include such an exception, and it is therefore permitted for an educator to read the correspondence of a female student with a young man where there is a suspicion that the contents are illicit, although it is preferable to simply ban the correspondence, and in any event, no one but her teacher may read it, and it must be perfectly clear that any information he gleans from his perusal must remain absolutely confidential. Similarly, where parents or teachers have a reasonable suspicion in particular circumstances that their children or students are corresponding with those who may incite them to sin, or where there is a reasonable suspicion of scandalous intercourse on the part of a woman, the parents, teachers, husbands, batei din or their agents may read the correspondence in order to prevent the illegitimate conduct or take other appropriate action.

It is unclear whether it is permitted to read another’s correspondence in order to avoid harm.

Eavesdropping

Some maintain that the cherem applies to eavesdropping on telephone conversations and the like.

Beyond the Cherem

Some maintain that even where the cherem is technically inapplicable, excessive curiosity and nosiness are inappropriate.