The Unique Challenges of the Digital Age - Transfer of Information, but No Audience

The Problem

 

Over the course of the last several months, we have explored various potential prohibitions that relate to the transfer of information, from breaching confidentiality to gossip to public humiliation, et cetera. In classic halakhic literature, all these cases assume an audience, admittedly of various sizes, and for good reason. It would be meaningless to gossip to, or share a secret with, no one. However, the digital age has introduced a new problem — the sharing of information, with real-world consequences, but with no audience.

 

Companies like Facebook and Google acquire information, though no person may ever see it. Information gathered from people’s searches and posts enable advertisers to provide targeted content, a fact that most people know, and many are okay with or even happy about. However, as the Cambridge Analytica case revealed, much more is at stake.

 

The information that is harvested may affect the political ads that are directed at people, shaping the contours of political debate and affecting the results of elections, as evidenced in the election of Donald Trump in the United States and the decision of the United Kingdom to leave the EU (Brexit). In some countries, with less strict data-privacy laws, the information gathered from texts and emails can be used to determine who is eligible for a loan.[1]

 

As a friend recently noted to me, the classic halakhic literature does not address these cases. In most of the above cases, there is no person who knows the information being transferred. Rather, the data is fed into computer systems and algorithms determine how the information is used. Sometimes, actual people will interact with the data, though all of the identifying markers have been stripped out. The results deeply affect the lives of all of us. What language does Halakha have for “gossip” or secrets revealed only to a computer or anonymously? Alternatively, as Professor Nachum Rackover presents the question in his book Ha-hagana al Tzinat Ha-perat (Protecting the Privacy of the Individual), does Halakha recognize a right of privacy? If we could establish that it does, then violations of privacy, even in the ways outlined above, would presumably be prohibited.

 

For our purposes, we will avoid the issues of legality. Obviously, in a country where the collection of certain data is forbidden by law, one must contend with the halakhic principle of “dina de-malkhuta dina,” “the law of the land is binding.” Much of the debate has been about what should be legal, and in some cases, whether data has been collected illegally. Our goal is to explore what values Halakha may add to the conversation which is currently at the crux of legal and ethical debates worldwide.

 

We will have to relate to the question of consent as well. In many cases, legal issues may be avoided by apps requesting consent before download. However, while this may solve the legal problems, it may not always be sufficient legally or halakhically, if it is clear that those consenting do not have a full grasp of the extent to which they are permitting their data to be used. Thus, we must ask whether a formal acceptance would be sufficient, assuming that without consent the collection of data would be prohibited.

 

 

If the issues of lashon ha-ra and the like are about speech ethics, it would seem that these categories would have little relevance for our conversation. Take, for example, the mystical comments presented by Rav Yisrael Meir Kagan, the Chafetz Chayim:

 

 

While the Chafetz Chayim discusses different rationales for the prohibitions elsewhere, this aspect clearly does not speak to the unique modern reality. The ethics of speaking and listening are almost irrelevant when dealing with nameless data-sharing.

 

 

Without reiterating our full discussion about this decree, I would assume that it does not apply in a case when no human being actually sees the information. The focus of the decree seems to be upon actually reading someone’s mail, which does not happen when the data is utilized by machines; even if it is accessed by people, it is without identifying markers. However, as we noted in our previous shiurim, the decree may have been instituted to protect one from violating other prohibitions, which may indeed be relevant for our discussion.

 

 

As we noted many times in our previous shiurim, in addition to any specific violations that may be involved in sharing information, an overarching concern that must guide our behavior is the general obligation to love others as ourselves and treat them as we would want to be treated. This general perspective, while it may not provide pointed prescriptions in any given circumstance, obviously must remain in the background of our discussions. The same may be true for those who understand the prohibition against breaching confidentiality as an expansive ethical mandate. Our focus here will be on whether there are specific prohibitions that are violated in these cases.

 

 

We explored the debate about the parameters of hezeik re’iya and whether it could be expanded to hezeik shemia. Several authorities contend that in any case in which eavesdropping or the like would prevent people from living their normal lives, it would be prohibited to access their information as an extension of this category.

 

This kind of expansion can be relevant in this context. For many people, the knowledge that their information is being used to created targeted advertisement for them does not in any way hinder their use of Google, Facebook or the like. In fact, for many people, they would prefer that they only get targeted ads. Hence, Facebook asks its users which advertisements they do not want to see in order to better provide advertisements which they do want to see.

 

On the other hand, many people, if they knew that their information was being used to sway whom they would vote for in a political election, would probably be more careful. While much of the outrage around the Cambridge Analytica case hangs on whether they gathered the information legitimately, part of it is because people are genuinely upset about how their data was being used. If people knew that the messages they send could determine what loans they may be approved for, I would assume it would limit the way they use their computers and smartphones. If so, a potential way of framing the halakhic perspective based on an expanded notion of hezeik re’iya would be the following: if the data collection means that the subject, had he or she known that such data was being collected, would have limited the way he or she lived his or her life and used his or her technological devices, such collection may be a violation of Jewish law. We will return to the question of whether consent may obviate this concern.

 

 

Is there any way to argue that someone who transfers data without an audience might be considered to have gossiped or revealed a secret? As noted above, if the focus of these prohibitions is ethical speech, then we would assume that this is not the case.

 

However, as many commentaries note, the primary reason lashon ha-ra is prohibited may be the damage it causes. They derive this from the prohibition that is juxtaposed to the prohibition of lashon ha-ra in Vayikra 19:16, namely, “Do not stand idly by as your fellow’s blood is spilled.” If this rationale for the mitzva indicates its nature (without focusing on the question of darshinan tama de-kra, whether the philosophical rationale for a mitzva can affect its juridical application), then perhaps any transfer of information that may cause damage should be prohibited, whether there is an audience or not. For example, Rambam begins his discussion of lashon ha-ra with a focus on the potential harm it might cause:

 

 

However, there is an even more striking possibility that hangs on a more literal interpretation of the verse. The Torah refers to the prohibition of lashon ha-ra, whether that refers to gossip and its related prohibitions or to the prohibition against breaching confidentiality, as “You shall not go talebearing (rakhil).” What is rakhil? In the nominative form, a rokhel is peddler. Why is one who a gossipmonger referred to a peddler?

 

The Yerushalmi in Pei’a (1:1) explains that the metaphor is as follows: a peddler buys merchandise and circulates around until finding someone to buy it. The same is true of a gossipmonger, who collects information and looks around for someone who will listen to it. In the parable, information is referred to as a commodity.

 

Rashi (Vayikra 19:16) expands on this as follows:

 

 

 

 

Rashi understands that the gossipmonger acts like a peddler. The focus is not on what the speaker says, but the way the speaker peddles information. Many other commentaries accept the position of the Yerushalmi.

 

The modern world seems to open the possibility of a return towards the literal understanding of the metaphor. Now data is literally a commodity, even when no audience hears or sees it! Indeed, the companies that sell the information are literally peddlers of information, of data.

 

The Or Ha-chayim (ad loc.) seems to take this literal understanding as the most straightforward application of the halakha as well:

 

 

A recent article explains how the techniques used by companies like Google and Facebook are essentially a return to this literal peddling of information:

 

 

 

Thus, if we accept this return towards peshat (the simple meaning of the verse), perhaps such sharing of information would be lashon ha-ra or rekhilut, understood either as damaging gossip or breaching confidentiality.

 

Of course, as this is not how Halakha has classically understood this prohibition, this approach does assume that we are able to derive new applications of halakhot based on how we understand the words of the Torah and the ways they are understood by Chazal. This is not quite deriving new laws straight from the Torah, which is subject to an extensive debate among the Poskim, but it is clearly a radically new application.[5]

 

Rav Shimshon Refael Hirsch seems to entertain this possibility most explicitly:

 

 

This prohibition perceives national society as "peoples" — as closed circles, as households and as families. Family members discuss their affairs within the boundaries determined by natural training, and things will not pass on their own "from people to people,” from group to group. The people of one group give their trust to each other, and on the basis of this they speak and act. One who passes this information to another group is going as a rokhel among his or her people. Therefore, we are commanded to protect the dignity of every person and to respect his or her private affairs. It our obligation to be careful in our words, when we speak about others. If one tells over someone else’s private affairs, there is no knowing where the information will reach!

 

This, in many ways, captures the modern reality.

 

 

A position that combines several of the above notions, both that of hezeik re’iya  and treating information as a commodity, is that of the Torat Chayim. According to this position, using someone’s information without permission is theft under the category of she’eila she-lo mi-da’at, borrowing without permission. Rav Dovid Lichtenstein presents how this would apply to personal data as follows:

 

 

This theory is advanced by Rav Chayim Shabbetai of Salonika (Maharchash), the Torat Chayim (3:47), in reference to reading someone else's personal correspondence. He writes that reading someone's letter without his consent is she’eila she-lo mi-da’at, as the writer has legal ownership over the letter, stipulating that it be read by a particular individual. Some have suggested applying the approach of the Torat Chayim to all situations of accessing private information, claiming that a person has legal ownership over all of one’s private information and therefore obtaining such information without the "owner's" consent would constitute theft.

 

The concept that violating someone's privacy constitutes theft may be reflected in the Siach Yitzchak commentary to the Siddur, which asserts that when we confess “Gazalnu,” "We have stolen," in the Vidui prayer, this includes “Chatanu be-hezeik re’iya,” “We have sinned by damaging others by looking at their personal property.” Classifying privacy violations under the category of theft might mean that this prohibition stems from the unauthorized “use” of a person’s “property.”[6]

 

Rav Lichtenstein notes that while this argument was put forth by Rav Avraham Sherman in a decision of the Tel Aviv Rabbinical Court, both Professor Nachum Rackover[7] and Rav J. David Bleich[8] reject this implication. They argue that the focus of the Maharchash is on the use of the letter, not the information contained within. Thus, these sources are insufficient to establish a right to privacy that would obtain even when there is no audience for the breach of secrecy.

 

 

Rav Chaim Palagi (Responsa Chikekei Levi, YD 1:49) argues that breaching confidentiality is forbidden because it is geneivat da’at, which normally refers to deception. However, Rav Palagi notes that in this case, “he steals that which is hidden in his heart.” This formulation also points in the direction of understanding information as a commodity that can be sold, as well as illicitly taken and transferred.

 

 

 

Next week, we will explore more aspects of this question, as well as the possibility that people have implicitly granted permission to companies to share their data by using the programs and applications made by these companies.