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THE PRIVATE SECTOR: CORONAVIRUS, CONTAGION, AND CONTACT TRACING

Is There a Right to Privacy in Halacha?

Adapted from the writings of Dayan Yitzhak Grossman

June 4, 2020

One of the key tools for containing the spread of infectious diseases in general, and COVID-19 in particular, is contact tracing, the process of identifying those who may have come into contact with an infected person. This was traditionally done by health-care workers privately interviewing individuals to trace their movements, but Google and Apple have recently announced plans to introduce software into their respective smartphone operating systems that will facilitate contact tracing via the automatic wireless exchange of identifiers between phones that come into close physical proximity. There is great concern on the part of privacy advocates that promised safeguards will prove insufficient, and that once such systems have been deployed, the temptation to use them for other purposes might prove irresistible.

The Halachic Foundations of Privacy

The Torah has no comprehensive framework of privacy rights and regulations. The two main classic halachic sources that establish at least some right to privacy are hezeik re’iyah (damage by viewing), which some Rishonim understand to embody a concern for the privacy of an individual whose affairs would be exposed to his neighbor’s view,[1] and the cheirem (ban) of Rabbeinu Gershom (chadra”g) against reading mail addressed to someone else.

Some authorities have advanced additional reasons to forbid the reading of someone else’s correspondence, including the prohibitions of theft, causing harm, and the bearing of tales, and the commandment to love one’s neighbor as oneself, but it is not entirely clear whether these are intended as rationales for chadra”g or as independent considerations.[2]

It is unclear whether the two specific prohibitions of hezeik re’iya and chadra”g can serve as a halachic basis for more general privacy rights. With regard to the former, some poskim limit it to the written word, and do not even extend it to telephone and electronic communications, but others assume that it does extend to those media. Moreover, even those who interpret it narrowly agree that eavesdropping on electronic communications is prohibited for other reasons, including those mentioned in the previous paragraph.[3] Similarly, early authorities discuss whether hezeik re’iyah includes hezeik shemiah (damage by hearing),[4] but some later authorities explain that even if it does not, that is only because traditionally, there was no expectation of privacy regarding verbal conversation, but insofar as there is, eavesdropping is forbidden.[5]

The Expectation of Privacy and Data Aggregation

The issue of expectation of privacy is another reason that the aforementioned halachos may not apply in our context. We have noted that hezeik re’iyah does not apply where there is no expectation of privacy. Similarly, there are disputes over whether chadra”g applies to unsealed letters or postcards, or to discarded letters. In our context of contact tracing, an individual does not generally have an expectation of privacy regarding his location when in public. On the other hand, contact tracing data can include the record of one’s location even when he was not in public. More fundamentally, modern technologies of data aggregation result in the paradox of the whole being profoundly more ominous than the sum of its parts: an individual’s profile can consist of a vast number of individual data points which may be totally innocuous in and of themselves, but in the aggregate they can constitute a grave breach of privacy.

Considerations That Outweigh the Right to Privacy

Even relatively stringent prohibitions such as slander give way in the face of the need to forestall harm to others, and much more serious breaches of privacy are sanctioned in such cases.[6] In the same vein, poskim allow and even require physicians to violate medical confidentiality and disclose their patients’ medical conditions when necessary to prevent them from harming others, even inadvertently, due to the prohibition of lo sa’amod al dam reiecha (do not stand by your fellow’s blood), as well as other considerations.[7]

It is unclear whether the uncertain benefits of software-based contact tracing would be sufficient to override full-fledged Biblical prohibitions such as rechilus (talebearing). With respect to chadra”g, contemporary poskim debate the general question of whether the cheirem applies where accessing the information is necessary to fulfill a mitzvah, and it is also uncertain whether it applies where accessing the information is necessary to avoid harm.

[1] See Yitzhak Grossman, Bilam, Basilisks and the Evil Eye, in The Bais HaVaad Halacha Journal, Volume 5775 Issue XXXVI (Parashas Balak).

[2] See Yitzhak Grossman, Corresponding Respect: Privacy in Personal Mail, in The Bais HaVaad Halacha Journal (tinyurl.com/yb67lh7r) and Hack Attack and Halacha: The Halachos of Hacking, in The Bais HaVaad Halacha Journal (tinyurl.com/ycvufa7n).

[3] Ibid.

[4]See Bais Habechirah Bava Basra 2a end of s.v. amar haMeiri; Shu”t R. Eliyahu Mizrachi end of siman 8.

[5]Pis’chei Choshen, Nezikin ch. 14 n. 53 p. 406 s.v. v’nireh; Eimek Hamishpat Hilchos Shecheinim siman 26 osios 2-4 pp. 202-04, but cf. Mishkan Shalom siman 6 mekoros uviurim os 14 p. 342.

[6]See Pis’chei Teshuvah (Isserlin) siman 156; Sefer Chafetz Chaim, Hilchos Rechilus Klal 9.

[7]Shu”t Chelkas Yaakov E.H. siman 79; Shu”t Tzitz Eliezer cheilek 13 siman 81 os 2 and cheilek 15 siman 13 os 1; Shu”t Yechaveh Daas cheilek 4 siman 60. Cf. the entry for Sodiut Refuit in the Encyclopedia Hilchatit Refuit.

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