Is Spying on Citizens Kosher?

The Jewish view: It’s a question of morality, not legality.

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“Big Brother is watching you.” That is one of the most iconic lines from George Orwell’s classic novel “Nineteen Eighty-Four,” but it could also describe one of 2013’s defining stories. In June, The Guardian exposed a classified court order that directed Verizon, the largest American telecom company, to turn over the phone records of millions of American customers to the National Security Agency on an "ongoing, daily basis." The next day, The Guardian revealed a program called “Prism” that potentially enables the NSA warrantless access to Google, Facebook, Apple, and others in order to collect search histories, emails, file transfers and chat records.

As the months went on, more information came to light about the extent to which the U.S. government spies on its citizens. Consequently, analysts, politicians, policymakers, and judges have been vigorously debating whether any or all of the NSA’s domestic surveillance programs are legal.

The legal discussion, while interesting, is secondary to a serious discussion about the morality of government surveillance. If programs like the NSA’s are morally good, then we should support them. Likewise, if they are immoral, then people of conscience must oppose them, even if they are legal.

Despite having been authored over the course of many centuries before the advent of the telephone or the Internet, the Jewish tradition has much to say on this question, and offers moral guidance worthy of our consideration.

Privacy is a core Jewish value. In the Book of Numbers, when the Midianite sorcerer Bilaam blesses the Children of Israel, he marvels, “How good are your tents, O Jacob, your dwelling places, O Israel!” Many Jews still recite this passage each morning. But upon reflection, it is a peculiar blessing. What could possibly be so good about Israel’s tents? According to the Babylonian Talmud (Bava Batra 60a), the Israelites pitched their tents so the doorways would not face each other; they respected the privacy of their neighbors' closed doors.

Judaism holds privacy as crucial because it protects human dignity. According to Rabbi Elliot Dorff’s masterful 2003 book, “Love Your Neighbor and Yourself,” when we know others have access to our secrets, we can feel compelled to sacrifice our individuality for fear that we will be judged, criticized, or even punished for our unique qualities.

For related reasons, creativity and innovation becomes less possible in a world with no privacy. If you knew that your crazy (but potentially genius) idea was exposed to the judging or unsupportive eyes of strangers before you had a chance to work it through, or that your failures would always be revealed, would you try to accomplish anything untested? In a recent interview, Glenn Greenwald, the reporter who originally broke the NSA story, put it pithily: “Surveillance breeds conformity.” Similarly, our tradition celebrates the uniqueness of every individual, even seeing God’s greatness as revealed through human diversity (Mishnah, Sanhedrin 4:5). Violating privacy diminishes individuality and minimizes diversity, and is therefore an assault on human dignity and an affront to God.

These basic values have been enshrined in Jewish law. The Torah prohibits intrusion (Deuteronomy 24:10-11) and gossip (Leviticus 19:16), and the ancient rabbis extended these prohibitions to include looking into another’s property. In the 10th Century, the great French sage Gershom ben Judah expanded those rules to forbid reading another person’s mail. Later authorities went even further, arguing that the prohibition should apply to postcards, whose contents are easily visible.

The postcard rule is important in our context. According to the view of these rabbis, even if a person has a lower expectation of privacy, Jewish law still demands that that person’s privacy be protected. Today, most people know that virtually everything they do on their digital devices can be – and often is – recorded and studied by others, including corporations and governmental agencies. As Aaron Sorkin wrote in “The Social Network” screenplay, “The Internet's not written in pencil, Mark. It's written in ink.” Our digital footprints last longer than we might wish. Yet even though our expectation of privacy is diminished, our right to privacy remains inalienable.

On the other hand, from the perspective of Jewish ethics, a government would be justified in violating the privacy of its citizens if it believes it will save lives by doing so. After all, Jewish law adjures that saving a life overrides most other biblical precepts (Babylonian Talmud, Yoma 85b), including privacy protections.

However, according to Rabbi Dorff, “the burden of proof always rests with the government to show why it must invade people’s privacy at this time and in this way to protect the body politic.” The government has no right to clandestinely, indiscriminately, and perpetually collect citizens’ private communications data based on a vague security claim.

In the Jewish view, a government must demonstrate how, and in what ways, each specific piece of data collection will help neutralize a specific threat. U.S. President Barack Obama has said that the NSA’s programs help “anticipate and prevent possible terrorist activity,” even as a federal judge reviewing the NSA’s programs recently wrote, “The government could not cite a single instance in which the bulk data actually stopped an imminent attack.”

The Torah calls on us to protect our own – and each other’s – privacy, which means we must demand proof from our leaders that collecting our personal data saves lives. Without proof, surveillance remains immoral, an assault on our human dignity.

Rabbi Michael Knopf is the Assistant Rabbi of Har Zion Temple in Penn Valley, Pennsylvania, and an alumnus of Clal’s Rabbis Without Borders fellowship. You can follow him on Facebook.

Photos of Edward Snowden, a contractor at the NSA, and U.S. President Barack Obama are printed on Hong Kong newspapers in this illustrative photo June 11, 2013.Credit: Reuters

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