Monday, September 26, 2022

A spirited debate erupted at Congregation Shaarei Orah, the Sephardic Congregation of Teaneck, this past Sunday. I dedicated our Sunday morning post-Shaharit shiur to the raging argument regarding the FBI’s demand from Apple that it create a program to break into the iPhone of the San Bernardino shooter. As expected, addressing this issue touched off a lively discussion from which I have the pleasure to share its highlights with you in this column.

On the one end, Halacha certainly agrees with the Supreme Court’s celebrated 1965 decision (Griswold vs. Connecticut) asserting that the Constitution guarantees a right to privacy. The Torah strictly forbids lashon hara and rechilut (slander and gossip), and rabbis throughout the world and throughout the generations follow the sterling example set by the Hafetz Haim to remind their constituents of the importance of adhering to these precepts. Moreover, the halacha forbids us from repeating information shared with in privacy unless one is specifically authorized to repeat the information. This halacha is derived from the pasuk that appears the most frequently in the Torah—“Vayedaber Hashem el Moshe leimor” (Hashem told Moshe to say). Without Hashem explicitly permitting Moshe Rabbeinu to share that which He told him, Moshe would have been forbidden to tell us what he heard from Hashem.

The primary value of privacy in Jewish life is what stirred none other than Bilaam to proclaim “Mah tovu ohalecha Yaakov” (how goodly are thy tents, O Jacob). Rashi, quoting the Gemara that appears in Masechet Bava Batra, explains that Bilaam was struck by the fact that the doors and windows of Jewish homes did not face each other, allowing each family its privacy and dignity. Hezeik re’iyah (infringing on one’s privacy) occupies the first major discussion in the great Masechet Bava Batra and constitutes an actionable tort in Jewish Law. Thus, under normal conditions, the government enjoys no right to intrude into the privacy of one’s computer, phone or any other aspect of one’s personal domain.

However, I cited Hacham Ovadia Yosef who in his Teshuvot Yehave Da’at requires a physician to a report a patient who experiences uncontrolled epileptic episodes to the department of motor vehicles. Hacham Ovadia believes that the public interest to protect motorists from horrific incidents outweighs the patient’s right to privacy. Parenthetically, we noted that civil law in this country might prohibit a physician from following this ruling, and violation might result in the revocation of the doctor’s medical license.

Thus, I argued that the government obligation to protect the public from terrorists enjoys priority over the right to privacy and that Halacha would find in favor of the Justice Department and the FBI. I argued that this is especially so in light of the Mishnah in the second chapter of Sanhedrin which states the king (i.e. legitimate government) enjoys the right to “poretz geder,” break down barriers, in order to construct a road needed by the community (the right of eminent domain). Similarly, in its waging war against terrorism, the government has every right to break the codes and enter the computer of the San Bernardino shooter in order to best serve the public.

My argument triggered a variety of responses. Our respected Rav Dr. Michael Chernick (whose deep thoughts are valued by a very broad constituency) offered his opinion that denial of the right to privacy is tantamount to depriving a person of his dignity and destroying a person. Thus, he believes that the government should never trample upon the privacy rights of individuals due to its devastating and deleterious impact. Our respected president Joel Mizrahi (a highly regarded computer specialist) noted that developing a program to open a locked computer could have potentially disastrous long-term impact. He noted that once such technology is developed it can easily slip into terrorists’ hands, who could use the information to penetrate the files of the armed forces of Western nations.

This rich discussion may not immediately resolve the ethical and legal quandary of Apple vs. the FBI, but it does illustrate the eternal vibrancy and relevance of our halachic system which provides us with all the necessary infrastructure to resolve any and all dilemmas that have arisen in our time and will ever arise in the future.

By Rabbi Haim Jachter

Rabbi Haim Jachter is the rabbi of Congregation Shaarei Orah, the Sephardic Congregation of Teaneck.


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