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Dayan Yitzhak Grossman
With each passing election, the specter of cyber-crime looms larger and larger. This is in addition to computer hacking carried out in the corporate arena. A number of years ago, a shadowy group of computer hackers styling themselves the “Guardians of Peace”, believed to be agents of the North Korean government, breached the security of internal computer systems of Sony Pictures Entertainment, accessed a trove of confidential and sensitive material, including personally identifiable information about the company’s employees and their dependents (including social security numbers, bank and credit card information, compensation details, and HIPAA protected health information) and email between the company’s employees, and disseminated this information publicly, causing embarrassment and inconvenience to many individuals, and considerable financial harm to the company.
While it is self-evident that such conduct is morally wrong, we consider here the question of the application of traditional Halachic categories and precedent to this quintessentially modern scenario.
The Herem of Rabbenu Gershom
There is a medieval tradition, generally attributed to Rabbenu Gershom Me’or Ha’Golah,[1] of a Herem [ban /anathema] against reading (or opening) a letter addressed to another.[2] Some Poskim take for granted that the Herem applies to eavesdropping and the interception of electronic communications as well,[3] although others adopt a narrow, literal reading of the Herem, and limit its applicability to its explicit subject, written correspondence.[4]
Related Prohibitions
The Aharonim 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.[5]
- V’Ahavta L’Re’acha Kamocha: “Thou shalt love thy neighbor as thyself” – “that which is hateful to you, do not do unto your friend”.[6]
- Lo Telech Rachil B’Amecha: “Thou shalt not go up and down as a talebearer among thy people”.[7]
- Genevat Da’at[8] [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; I do not understand the analogy.[9]]
- It is prohibited to cause harm to another, even indirectly (Gerama BiNzikin Asur), and reading others’ correspondence usually causes harm, whether financial or otherwise.[10]
Most of these concerns obviously apply to hacking in general (and to our situation in particular) and are indeed so applied by contemporary Poskim.[11] The question of the applicability of the prohibition against unsanctioned utilization of another’s property is an interesting one: R. Avraham Sherman (discussing eavesdropping on a telephone call) apparently understands it as applying to the intangible entity of information,[12] and should therefore certainly apply it to hacking, but R. Chaim Shlomo Rosenthal (discussing a similar case, the listening to a recording of a telephone call without the participants’ permission) is unsure whether the prohibition applies to such situations.[13] It can be argued that unauthorized electronic access of a computer system is tantamount to unauthorized physical access of that system, and is therefore prohibited by the prohibition against unauthorized utilization of another’s (tangible) property, but this is a non-trivial assertion.
Hezek Re’iya
One is forbidden to look from his window at his neighbor’s yard “in order that he should not damage him with his looking”,[14] and even where there is no concern for “damage of the eye” (i.e., Ayin HaRa), it is nevertheless prohibited to look at the affairs of another when conducted in his home and property (i.e., where there is an expectation of privacy), “for perhaps he does not desire that they should know his actions and affairs”.[15] Although the scope of this prohibition obviously requires elucidation, it presumably extends to the forbidding of the unauthorized accessing and public dissemination of private information, and has indeed been invoked to this effect by contemporary Poskim.[16]
We conclude with the uncompromising position of R. Yaakov Avraham Cohen: “Those who break into computer codes or into any protected data store or similar, who are called “hackers” – their sin is severe.”[17]
[1] Shut. Bene Banim, Helek 3 beginning of Siman 17 and note 1 of Rakover’s article (cited below).
[2] Shut. Maharam B. Baruch, Prague Ed., Siman 1022; Kol Bo, end of Siman 116; Shut. Maharam Mintz, Siman 102. For more or less comprehensive discussions of the Herem, see Encyclopedia Talmudit Vol. 17 end of entry “Herem D’Rabbenu Gershom” Ot 18 cols. 452-54; Nahum Rakover, HaHagana Al Tzin’at HaPrat – Herem D’Rabbenu Gershom BiDvar Keriat Michtavim; R. Avraham Naftali Zvi Roth, Al Devar HaHerem Al Keriat Igeret Shelo BiRshut, HaMaor, Year 32 Issue 3 (254) pp. 11-14; and R. Jacob J. Schacter, Facing the Truths of History, pp. 242-47 and notes 165-77 (pp. 269-71).
[3] Piske-Din Shel Bate HaDin HaRabbaniyim B’Yisrael, Vol. 14 p. 292 s.v. Barur she’en hevdel ekroni (R. Avraham Sherman); Piske-Din ibid. p. 307 s.v. U’Pashut hadavar sheyesh l’harhiv hadavar (R. Chaim Shlomo Rosenthal); Mishpete HaTorah Helek 1 Siman 92 os 4 pp. 337-38; R. Yitzhak Zilberstein, cited in Binat HaShidduch, Perek 7 She’elah 16 p. 379; Emek HaMishpat Hilchot Shechenim, Siman 26 Ot 4.
[4] Shut. V’Darashta V’Hakarta, Helek 1 Y.D. Siman 46 Ot 1 (in response to R. Tzvi Spitz, the author of Mishpete Torah); Shut. Shevet HaKehati Helek 4 (Inyanim Shonim) Siman 327 Ot 2.
[5] Shut. Torat Hayim (Maharhash) Helek 3 Siman 4; Shut. Kol Gadol, Siman 102.
[6] Shut. Hikeke Lev, Y.D. Siman 49.
[7] Shut. Halachot Ketanot, Helek 1 Siman 276; Hikeke Lev ibid.
[8] Hikeke Lev ibid.
[9] Rakover ibid. (note 15) defends the invocation of Genevat Da’at in this sense and cites other instances of such usage.
[10] Torat Hayim ibid.
[11] Shevet Ha’Kehati ibid. forbids the operation of “eavesdropping equipment that is called ‘scanner’” due to, inter alia, the concern of the Halachot Ketanos for Rechilut; V’Darashta V’Hakarta ibid. Ot 6 forbids eavesdropping on telephone conversations due to the concerns of V’Ahavta L’Re’acha Kamocha, Rechilut and Genevat Da’at.
[12] Piske-Din ibid. p. 292. An interesting parallel to the idea that the category of theft can apply to intangible information is the position of the Shut. Mahane Hayim 2:HM:49 s.v. U’L’Da’ati that plagiarism of the Torah of another constitutes Geneva or Gezela (theft), in spite of the absence of any loss to the victim, which he proves from the Talmudic characterization of the study of Torah by a non-Jew as theft from the Jewish people.
[13] Piske-Din ibid. p. 307. See Rakover ibid. (note 17).
[14] Rama, Hoshen Mishpat 154:7.
[15] Shulhan Aruch HaRav, Hoshen Mishpat, Hilchot Nizke Mamon, Se’if 11.
[16] Shevet HaKehati ibid.; R. Zilberstein ibid. p. 380.
[17] Emek HaMishpat ibid.