Hilchos Choshen Mishpat

Volume II : Number 17

Invasion Of Privacy

Question:

Reuven recently purchased a scanner with which he is able to eavesdrop on conversations made on cellular and portable phones. He would now like to know:

A. Is there a Halachic prohibition to listen to other people's phone conversations?

B. Are there any situations in which it would be permitted according to Halacha to listen in on the conversations of others without their knowledge and permission?

Answer:

A. Rabbeinu Gershom (also known as Me'or Hagolah, the "Light of the Diaspora" - a Rishon who lived approximately 1000 years ago) issued a Cherem (ban) on unauthorized reading of private letters. This prohibition applies even if the reader does not take the letter to his own domain. However, if the owner of the letter threw it into the trash, it is permissible to read it (1).
This Cherem is still effective today, and must be considered with the same gravity as any other Torah prohibition. It was embraced and accepted at the time that it was issued by all Jewish communities throughout the world. There was no time limitation placed on this ban (2).
B. Included in this ban is looking at any information that a person prefers remain private, e.g. looking at private documents, health or legal records, and credit reports.
The prohibition applies even if the person looking at these items does not plan on acting on the information that he sees, but is merely curious, or is interested in finding out what other people think and write about him, etc. (3).
C. It seems logical that today this Cherem would include intentionally eavesdropping on private telephone conversations. It would be forbidden even if none of the parties talking will be damaged by the fact that someone else was aware of their conversation, how much more so, if, as a result of the eavesdropping of the third party, one of the conversing parties will be financially hurt, or private personal information will now become known! (4)
D. There are some situations where it is permitted to examine another's personal letters and documents, and to listen in on private conversations. This is if doing so will help the person who's privacy is being invaded, or others, in a physical or spiritual manner. In such situations, the Cherem of Rabbeinu Gershom was never instituted, and it is absolutely permitted to do so.
Some examples of this would be if parents or educators have reasonable suspicion that their child or student is involved with peers that are influencing him in a harmful manner, whether physically or spiritually. Similarly, if parents or educators are concerned that a child or student has been involved in wrongdoing, they or an agent of a Bais Din may look at his private letters or listen in on his conversations so that they may deal with the problem effectively (5).
However, if nothing positive could possibly come from this, and the parent or educator is curious to know what the child's opinion of them is, the Cherem would apply and it would be forbidden to do so.

Sources:

(1) In the Teshuvos Maharam MiRottenberg (Frankfurt Edition 160a) the Cherem Of Rabbeinu Gershom is quoted as follows; " A ban was issued not to look at a letter of one's friend that was sent to another friend, without his knowledge. If it was thrown (into the trash) - it is permitted." It is clear from this that the prohibition applies to any situation where private information is gleaned, regardless of whether it is in the owner's domain or not. In other words, even if theft is not an issue, the reader of this private information is still transgressing the Cherem.

(2) We must realize that Rabbeinu Gershom actually issued many Takanos (injunctions) and Cheramim (bans). Some were not accepted at all, some were restricted only to his generation, some were only accepted in the European Jewish communities, some had a specific time limitation on them, and others were accepted and embraced by all Jewish communities everywhere with no time restrictions. Similarly, some were enacted as a "fence" to ensure the keeping of Halacha, while others were enacted for the benefit of the social fabric of Jewish communities. Therefore, we can not compare the effectiveness and limitations of one of his Takanos to another.

For example, Rabbeinu Gershom's ban on bigamy was only accepted in the Jewish communities of Europe, and was originally only instituted until the end of 5000 years from the creation of the world (758 years ago). The only reason why we still continue this ban today is because the Rishonim who lived at the time that the ban was to expire decided to extend it indefinitely, as is stated by the Rema (Even HaEzer 1:10). However, in Sephardic communities this Cherem was never accepted at all. Additionally, the Darchei Moshe (Even HaEzer 1:10) points out that this edict was not made as a "fence", that the laws of the Torah not be transgressed, rather it was created to protect and insure the happiness and security of Jewish women. Therefore, the Rema concludes that in certain extenuating situations, where there may be a doubt if a man has been previously married, we might allow him to marry, since this is merely a "Takana Of The Poskim".

However, Rabbeinu Gershom's ban on divorcing a wife involuntarily was originally instituted indefinitely, and was universally accepted by all Jewish communities. Additionally, this Cherem was issued as a "fence", to insure that the Torah laws not be violated, as is stated in the Teshuvos Chassam Sofer (Even HaEzer Siman 3). Such a Cherem is much more stringent. In the words of the Ramban (in his commentary at the end of Parshas Bechukosai), such a Cherem is a "Cherem D'Oraysoh" - is given the status of a Torah law, in which case we may not be lenient even in a case of doubt. This is also pointed out by the Nodeh BiYehuda (Even HaEzer Vol. 1, Siman 75 and 77), and the Sedei Chemed (Vol. 6 Page 265).

The Cherem that we are discussing in our case, i.e. not to read another person's private information, was also instituted by Rabbeinu Gershom to be effective indefinitely, and was also accepted and embraced universally by all Jewish communities. Additionally, it was created as a "fence" so that people not transgress Torah prohibitions, i.e. the prohibitions of Loshon Hara (slander) and Rechilus (gossip) that would result from people knowing other's private business, and harm and damage that may befall people whose information becomes public knowledge, including informing (Mesira). This was evidently a prevalent problem in the times of Rabbeinu Gershom. Therefore, this Cherem must also be considered a "Cherem D'Oraysoh", and one must be stringent regarding it even in a case of doubt, as stated above.

(3) Because Rabbeinu Gershom issued the Cherem to create a fence around the Torah and prevent people from accessing private information that belongs to others, it is obvious that a distinction should not be made between letters sent by a messenger, mail, or via fax. Additionally, it makes no difference if the information has been transcribed on paper or is being displayed on a computer screen.

There is an additional interesting point that is discussed in Teshuvos Halachos Katanos (Vol. 1 Siman 276). Not only is it considered Rechilus to talk about others, it is also Rechilus to seek out other's private information even if you do not disclose it to any one else! He calls this "gossiping to one's self." Therefore, in our case, if someone listens to other's private conversations he is also violating the Torah prohibition of (Vayikra 19:16) "Lo Saylech Rochil B'Amecha."

(4) In light of all of the above, it seems that the reasoning of the Rabbeinu Gershom would extend to eavesdropping on telephone conversations if the parties are unaware of his listening in and can do nothing to protect themselves from it. However, if two people are talking in a room in a manner in which others can hear, there is no prohibition in listening in on their conversation. They are causing the breach of their privacy themselves, and they can't expect that others within earshot will close their ears to what is being discussed around them. If they want to discuss things privately, they should learn from Yaakov Avinu who called his wives Rachel and Leah to the fields when he wanted to discuss something private with them in a manner that Lavan and his sons not hear them (Beraishis 31:4).

If someone is talking on the phone and there are others within earshot, they should avoid listening even to one side of the conversation, unless they can tell from the person talking on the phone's actions that he is not discussing a private matter.

(5) The Teshuvos HaRashba (Vol. 1 Siman 557) states that Rabbeinu Gershom did not make his decrees so that people might violate Torah or Rabbinic Halacha because of them. Just the opposite, they were instituted only to insure compliance with our Torah and to insure that Jewish people act in a correct and modest manner. Therefore, if a Bais Din, parents, or educators objectively determine that in a certain situation they can only insure compliance with our Torah by "violating the privacy" of an individual by reading their mail, diary, or listening in on their telephone conversations, there is no doubt that Rabbeinu Gershom would agree that it would be a Mitzva to do so. We actually see this also from the Gemara (Sanhedrin 67a), that states that Bais Din would designate witnesses to eavesdrop on the conversation of a Maisis (a person trying to convince others to transgress the Mitzvos of the Torah) to find out who he is and to punish him.

Feedback is appreciated! It can be sent toatendler@torah.org.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!