Hilchos Choshen Mishpat
Volume II : Number 17
Invasion Of Privacy
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
A. Is there a Halachic prohibition to listen to other people's phone
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?
- 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.
(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
(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
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.
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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
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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!
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