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Is there a Halahic mandate to guard private information?
By: Rabbi Yosef Fund
Public Interest vs. Privacy
As the world of technology and personal computing evolves at breakneck speed, so do the issues surrounding its proper usage. One of the major issues currently under fire is the right to privacy.
Following the December 2015 terrorist attack in San Bernardino, CA, which took the lives of fourteen people, the terrorists, Syed Farook and his wife, smashed their personal phones and removed the hard drive from their computers. Yet, Farook’s iPhone 5C, which was given to him by his employers, remained intact. The phone is now government property, since Farook was a public employee.
However, the FBI is unable to access the phone, since it is set to automatically erase itself after ten wrong passcodes are entered. The FBI’s request from Apple to allow them to bypass the extra security features blocking access to the phone, have ignited a storm of controversy in the world of information technology.
To date, Apple has refused the request of the federal government. Security firms support Apple’s decision, due to concerns of undermining all computer security. They argue that assisting the FBI in this case would establish a legal precedent which would allow the government to break into computers more easily. If Apple would comply with the FBI in this case, it may be impossible for them to refuse any future requests which compromise personal security.
Were this case to be tried in a Bet Din, what would be the Halacha? Does the Torah recognize an individual’s right to privacy? Can the government override personal privacy for the sake of public interest?
Maintaining Privacy in Halacha
There is a general prohibition in Halacha against revealing secrets. One who receives information in confidence may not repeat it. It should generally be assumed that private communications should not be repeated, unless express permission is granted[1]. To quote the Hafetz Hayim[2]: “Even if revealing the secret does not involve slander, revealing of secrets is of itself damaging and a breaking of trust, and a transgression of Tzeni’ut”. One of the leading scholars of our generation, Rav Hayim Greineman זצ”ל, further defines this concept by asserting that it is prohibited to “take from one’s private domain to the public domain, even with regards to matters that are not derogatory, if these are matters that people are particular about”.[3]
Thus, a professional who received payment for a service and gave either explicit or implicit assurance not to reveal information, may not do so according to Halacha. If the professional does reveal private information, he becomes disentitled to the payment, since he broke the contract of confidentiality.[4]
Ribbi Ya’akov Hagiz rules in his Teshuvot, Halachot Ketanot, that it is prohibited to attempt to discover someone else’s secret[5]. The Pele Yo’etz explicitly forbids eavesdropping[6]. Later Aharonim also forbid make use of a device that allows one to listen to others’ conversation[7]. The verse in Devarim[8] states: “כי תצא מחנה על אויביך, ונשמרת מכל דבר רע”- “When you set out to encamp against your enemy, refrain from any evil matter”. The Meshech Hochma suggests this may be understood as a prohibition against the revealing of military secrets in a time of war.
Permission to Disclose
The general rule is that any information conveyed – even in a public forum – should not be revealed, if the speaker specified that his words are not to be conveyed further[9]. However, there are limited situations in which it is permitted to disclose secrets.
If testimony is required in Bet Din, there are authorities who require conveying the information upon the Bet Din’s request, even if it was received in confidence[10]. One who knows the location of a lost object must inform the owner, even if he received the information in confidence[11]. This may be applied as a general rule in cases of monetary loss to others, and certainly, in cases of physical danger to others[12]. If a private letter contains information relevant to someone else, it may be permitted to open it, in order to prevent a loss[13].
If the person summoned to reveal information may also undergo a personal loss, he may decline to reveal the information, unless others are in immediate danger[14].
The Halacha in the Apple Case
In order to understand the Halacha in the dispute between Apple and the FBI, it would be necessary to determine if revealing this private information would save others. If there is only a remote danger, the likely loss to Apple would absolve them from acting in a way that is detrimental to their own interest. However, there is an important caveat: when dealing with a possible danger to a large public, we are concerned even for an unlikely dangerous outcome[15].
Ordering Apple to Write Code
As far as the FBI’s request that Apple write code to enable the authorities to access the information on the phone, the author of this article is not aware of a Halachic basis on which a Bet Din would have the authority to order such proactive participation (should the Justice Department decide to write their own code, and only ask of Apple to issue an Apple certificate of authenticity, perhaps this may then be viewed as simply revealing information, which would be subject to the above discussion).
One could consider, that in this case the Justice Department is not acting merely in a judicial capacity, as would a Bet Din, but rather in an executive capacity – as would a Melech (sovereign). It is possible that according to Halacha, a sovereign – and in this case the executive – would the power to draft not only to a military army, but also a civil force[16]. If so, perhaps an executive would have the power to order this kind of participation to further the government’s needs.
It is important to note that, as the Malbi”m[17] discusses, in Torah sources we find both unlimited sovereigns, and limited, or constitutional, sovereigns. With regards to the United States Government and the Justice Department, such matters would be subject to the determination of the appropriate channels whether it is within the limits of their authority.
[1] יומא ד’ ע”ב
[2] הל’ רכילות פ”ח ס”ה
[3] חידושים וביאורים, פאה א, טז
[4] שיעורי תורה לרופאים, ח”ב סי’ ע’
[5] ח”א סי’ רעו
[6] ערך ‘סוד’
[7] שו”ת שבט הקהתי ח”ד סי’ רכז
[8] כג, י
[9] חפץ חיים הל’ לשה”ר פ”ב ס”ז
[10] עיין ט”ז חו”מ סי’ כח סק”א וארחות משפט עמ’ שכח
[11] מהרי”ק שורש ק”י
[12] ההגנה על צניעות הפרט, פרק ו’
[13] ובשו”ת חקקי לב יו”ד סי’ מט נסתפק בזה
[14] שיעורי תורה לרופאים, ח”ה סי’ רחצ
[15] הגרש”ז אוירבאך זצ”ל הובא בספר רפואה, מציאות והלכה עמ’ 12
[16] הלכות מדינה לבעל הציץ אליעזר זצ”ל, ח”ג שער י’ פ”ו
[17] אסתר א, א