• Editorial - September 2007
Rosh Hashanah 5768
• Power and Morality
• Gush Katif – Two years on
Judea and Samaria
• Dogs and Men
• Occupation? Whose Occupation?
• Capability and Humility
• Saving Lives
Art and Culture
• Women in the Shoa
• Jerusalem and Tbilisi
Crime and Justice
• Zentai case
Ethic and Judaism
• Justified Invasion?
By Rabbi Shabtai A. Rappoport
K. owns a cutting edge biotech small company. P. is a long time friend, occupying a minor managerial post in this company. Recently K. realized that some costly processes, developed by his company, found their way to a rival company. After an intensive detection work he himself conducted, K. started suspecting an inside source in the company, who is no other than P. However, K. could not confront P. with half baked suspicions without some solid evidence. After some deliberation he found a way to either obtain this evidence or to clear P altogether. K. knew that P. did all his correspondence, and conducted all his private business, on his home computer. If, indeed, P. was selling away the company's processes, a trace of his dealings will be found on files on the system. Entering P.'s home, and accessing his computer surreptitiously, was out of question. However, P. was backing his system regularly to a remote secure server, which belonged to a company in which K. happened to have a financial interest. K. could work his way into the remote server, access P.'s account, break the simple security code, and read P.'s files.. K.'s dilemma is whether he is ethically justified in invading P.'s privacy. According to K. if P. is innocent nothing of the information will ever be revealed to anyone else, and K. himself will try to remove it from his own consciousness. Surely such an invasion of privacy could not do P. any harm?
The Mishna (Sanhedrin III, 7) relates the manner in which verdicts are to be given in Jewish court: "When the verdict is arrived at, the parties are readmitted, and the senior judge says… `you are liable`…and whence do we know that one of the judges, when leaving, must not say `I was for acquittal while my colleagues were for conviction but what could I do, seeing that they were in the majority?`- of such one it is written `you shall not go about as a talebearer among your people` (Leviticus XIX, 16), and also `he that goes about as a talebearer reveals secrets`(Proverbs XI, 13).
This ruling seems to be inexplicable. Why should the revealing of a minority opinion in court be tantamount to forbidden gossiping? Maimonides in his commentary to the Mishna explains that the veiling of individual opinions in Jewish court prevents the losing party from finding which judge ruled against him. Secrecy's object is that the judges will be well liked by the entire community. This reasoning is indeed puzzling. How can the judges ever find favor in the eyes of both parties, and why will it enhance their public image if the person who lost his case before them will falsely believe that the verdict was reached unanimously? Also, revealing individual judicial opinions seems to better serve the object of truth. Why then should the court's public relations interest take precedence over the truth?
The Gemara (Sanhedrin 31' a) relates a story in conjunction to the above ruling. The story is not about a court, but rather about Beth Ha'Midrash, which in Talmudic times refered to the council of the Sages. "It was rumored of a certain disciple that he revealed a matter discussed in the Beth Ha'Midrash twenty-two years earlier, So Rabbi Ammi expelled him from the Beth Ha'Midrash saying: This man reveals secrets". This is even more baffling, why should discussions among the Sages held secret? The Mishna and Talmud relate many such debates, which, in turn, serve as a major halachic source material.
The Mishna (Yadaim IV, 3) gives an account of a debate among the Sages in Yavneh. Strong arguments were given by both sides, and a decision was reached by casting a vote. It goes on relating that when Rabbi Eliezer – who was not among the Sages present in Yavneh - was informed about the debate and the decision, he became exceedingly upset and cited the verse from Psalms (XXV, 14) "The secret of G-d is with them that fear Him, and His covenant, to make them know it". Rabbi Eliezer then asked to inform the Sages to disregard their vote, because he personally bears witness that his Rabbi carried an oral tradition down from Moses, that rules exactly like the decision reached by vote of the college of the Sages.
Why then was Rabbi Eliezer upset? What did he mean by quoting the verse regarding the "secret of the G-d"?
The solution to all these puzzlements seems to be that at any council of Torah scholars, be it a court of Judges, or a college of the Sages, each decision maker perfectly understands both sides of the argument, and debates within him the final decision. When a ruling is reached unanimously, there must have been a clear winning decisive argument. However, when the ruling was reached by majority vote, neither side could provide a foolproof substantiation to his opinion. Why then did an individual member decide one way and not the other? It seems that the individual member himself could not give a well argued reason to his final decision. It came as a deep conviction from within him, from his very fundamental understanding of Torah, and the concrete meaning of G-d's will. This is described as "the secret of the G-d" hidden in each soul, and consists of the continuous revelation of G-d to His people.
Rabbi Eliezer is described as the most diligent disciple of Rabbi Yohannan ben Zakkai, and as one possessing an absolute memory and total recall (Avot II, 8; Sukka 28, a; Sanherin 68. a). He was aware of the right decision, which the Sages debated, through his unremitting toil. No wonder that he was upset when his colleagues, who lacked his diligence, nevertheless reached the right decision due to "the secret of the G-d" revealed within them. It seemed that his extensive labor to carry on the correct oral tradition has become superfluous.
When an unanimous decision is reached in court, there is no reason for the losing party to doubt the integrity of the judges, since they must have had a decisive rationale for their decision. However, when he finds out that there was a judge who ruled in his favor, he deduces that all judges might have considered it possible to rule thus. He is then apt to suspect that they ruled against him because of an ulterior, perhaps corrupt, motive. Hence, the result of individual decisions being made public will be the unfeasibility for a judge to express an individual, innovative, decision. The Mishna (Avot IV, 8) tells us that a court should consist of several judges, in order to express several opinions. The revealing of individual decision might forestall this aim. The same applies to the college of the Sages. A Sage could not express an unproven, unorthodox opinion, if he suspected that the discussions will be made public. Guaranteed confidentiality is thus fundamental to one's free heeding of his innermost thoughts and reflections, until the time comes for his thoughts to be reasoned properly and made public.
What is true regarding a Sage, or a judge of the court, must be true, at some level, for each individual. G-d reveals Himself to all Jews, though in different modes, be it via a Torah opinion, a choice of a career, or a decision as to a worthy cause to invest one's money and time in, and in many other decisions, as G-d's will is multi level and infinitely complex. The ability of any person to reach a decision that is right for him depends on his ability to air, in his own mind, his innermost thoughts and ideas. He may write these out, for his eyes only, and then read and reconsider them. He may surf the web in order to find information or experiences, and get in touch with people that will enrich his personality. If his privacy will not be totally secure he will not be able to express and consider his thoughts. It follows that one's right to privacy of his ideas and their expression, be these written or said, does not consist of his right to protect some guilty secrets, but rather from his right to properly develop himself at all stages of his life.
Invading one's privacy, even when done by one person, is thus strictly forbidden by the Biblical Laws against gossip and talebearing. Still, as one may not commit crimes and hide behind the Halacha's protection, a Jewish court may issue a warrant to invade one's privacy after being supplied with a compelling reason. However, K. may not, on his own, invade P.'s confidential computer files in order to fish for information.
Even when the security forces of the state wish to invade one's privacy in order to prevent terrorist acts, such an invasion should not be taken lightly, and should not be done indiscriminately. Surely, public safety takes precedence over a possible damage to an individual's right to free development. However, as such development brings about the essence of ones' personality, the heeding of G-d's secrets in his own soul, its vital importance and the necessity of total confidentiality for its attainment should be seriously considered. .