| The author of this work is Ellis Weinberger
This work was accepted towards a MSc. (Econ) in Information and Library Studies at the University College of Wales, Aberystwyth. Privacy, Databases, and Jewish LawIntroductionThis paper will ask the following questions: Does privacy have significance in Western liberal thought? How is privacy being infringed by modern information technology in use by credit database and direct marketing firms? What are the moral concepts which can be said to form the Jewish
view of this form of privacy encroachment? The questions addressed in this dissertation are important because
professionals dealing in the collection, classification, and retrieval
of information may find themselves dealing with records which contain
information on human individuals. Infringing the privacy of individuals
has many ethical implications, which need to be examined. In order to
make reasoned judgments when deciding on policies for dealing with
records on individuals, information professionals need a moral
framework. The author of this dissertation was drawn to this topic for two
reasons. Firstly, grandparents on both sides of his family, in order to
save their lives, have had to flee authoritarian regimes and seek
refuge in societies operating under a Western, liberal, democratic code
of morality. Secondly, the author, having been raised in the Jewish
tradition, was interested to see how concepts from a Jewish view of
morality could be applied to the problem of modern privacy
invasion. The author has also trained as a librarian, and sees the role of
librarian as having special significance in a Western liberal
democracy. By enabling and facilitating the education of an informed
voting citizenry, the librarian can be seen to assist in the creation
of a genuinely enfranchised population. In this dissertation the functions which privacy serves in Western
liberal society are examined by perusing texts from the middle and late
twentieth century by writers who support privacy, human rights, and
political debate in the Western liberal tradition. The concepts behind Jewish religious law are introduced by examining
the way it has been studied and set over the generations. Some readers
may not be familiar with the process behind Jewish religious law, so
basic texts are introduced, and the way the basic texts are used when
ruling on Jewish law is explained. The concepts underlying the laws of
privacy in Judaism are illustrated by referring to modern writers who
explain the application of Jewish religious law to current questions
about privacy. The references to Jewish religious law, which is not the
law of the land in any country, and is only applied by consent of the
judged, are introduced in order to clarify the concepts behind the
morality of privacy in the Judaic way of life and thinking. All actions, whether legislative or technical, need ethical
frameworks to guide the people carrying out the actions. However, no
matter what framework is devised, it will only be the individuals
carrying out actions under that framework who can enable privacy to be
maintained by their own commitment to the moral basis of the
framework. Examples of databases sited are those which are maintained by
companies for commercial reasons. These were chosen because they are
both widely available, and used by librarians when answering commercial
queries. The effects of using these databases can intrude in to the
privacy of everyone who participates in commercial activity in society,
and this sort of intrusion can be carried out by any organisation with
sufficient financial resources. The dissertation is composed of four chapters. The first chapter
examines the moral basis of privacy in our western, liberal,
democratic, society. The second describes how computer databases and
database search techniques impinge on privacy, while the third chapter
examines what the Jewish point of view is on privacy. The fourth
chapter suggests uses of the Jewish view of privacy as a basis, to
provide guidelines for the ethics of database use. The first chapter introduces the concept of privacy and illustrates
how the right to privacy might be justified from a moral point of view
in a Western, liberal, democracy. The chapter moves from the function
of privacy in the political process, to the personal need for privacy,
then to the function privacy plays in creativity, and finally to the
social function of privacy. The second chapter begins by describing some of the commercial
databases which facilitate and track the financial transactions in our
daily lives. The chapter continues by examining some techniques which
enable the owners of these databases to discover a great deal about us
by using the databases which they own. The chapter concludes by
explaining how storage and analysis of information about us impinges on
our privacy. The third chapter elucidates the concepts behind the Jewish approach
to privacy. The chapter starts by examining Jewish religious laws which
are connected to privacy, by citing cases where these laws are applied
in rabbinical courts, and concludes by explaining the basic concepts
which underlie the Jewish approach to privacy for the individual. The fourth, and final, chapter shows the contrast between the
viewpoint on privacy as expressed in Jewish law and the tendency for
information technology to impinge upon privacy. The chapter concludes
by explaining how Jewish law can be used to judge situations where
information on individuals is stored, manipulated, and sold. By
proposing possible moral guidelines, the work may aid in the process of
planning and executing information storage and retrieval policies. Privacy, databases, and Jewish LawChapter OneWhy is privacy important in a liberal, representative,
democracy? There are records which exist because a person lives and acts in
this world. The concept of privacy this dissertation is considering is
the right of the individual to privacy for these records. These records
may, for example, contain information on the purchases she makes, the
telephone calls she carries out, or the journeys she undertakes. The form of liberal democracy assumed here, is the one currently
common in very few countries in the world. It is practised, or an
attempt is made to practise it, in countries such as Canada, the United
States, and most members of the European Community. In a liberal
democracy, the political system is meant to enlarge the liberty, in
other words the freedom of choice, of the individual. The individual is
constrained only by the needs of the community, as expressed by the
voice of people in elections accessible to all those governed. The very establishment of a liberal democracy depends upon the
rights and autonomy of the individual. The basic essence of the
totalitarian idea is the negation of the right for the individual, or
the will of the individual, to have any significance, by itself. Any
totalitarian political philosophy, whether calling itself communist,
fascist, or religious, takes to itself sole arbitration of values and
power, and thus must negate the significance of the individual as a
bearer of values and maker of decisions. Liberalism is based on the idea that the will of the individual is
of significance quite apart from any public role. In order for a
liberal democracy to function, each person needs to be an autonomous
individual, free to act within broad limits. "...The liberal...claims not merely a private capacity- an area of
action in which he is not responsible to the state for what he does so
long as he respects certain minimal rights of others; he claims further
that this is the residual category, that the onus is on anyone who
claims he is accountable." (Benn 1971, 239-240) Democratic politics requires autonomous people, with the confidence
to hold and argue opinions. With the aid of privacy for the individual
or the group of individuals, opinions can be debated, compromises
reached, and policies decided. Privacy reduces the vulnerability, and
even more important, the feeling of vulnerability, of any group or
individual attempting to think about change. Gavison declares that the
basis of participatory politics is the privacy of an individual's
private life. Without privacy, more is asked of the tolerance of
society than can be borne by the society. Privacy thus injects
flexibility into the body politic. "...Privacy is crucial to democracy in providing the opportunity for
parties to work out their political positions, and to compromise with
opposing factions, before subjecting their positions to public
scrutiny. Denying the privacy necessary for these interactions would
undermine the democratic process." (Gavison 1980, 369) Privacy of the individual is of the very fabric of a democratic
society. One of the measures by which a democracy can be judged, is by
the quality of privacy afforded to groups and individuals. By enabling
privacy for the individual, a democratic society sets limits on the
machinery of power. Indeed, by facilitating privacy, society is setting
limits on the power of the ruler, since a limit is being set to the
wish of the ruler to know all, and therefore control all. "Just as a social balance favouring disclosure and surveillance over
privacy is a functional necessity for totalitarian systems, so a
balance that ensures strong citadels of individual and group privacy
and limits both disclosure and surveillance is a prerequisite for
liberal democratic societies. The democratic society relies on
publicity as a control over government, and on privacy as a shield for
group and individual life." (Westin 1967, 24) The morality of privacy It can be argued that there is a moral basis for the right to
information privacy. Privacy is important so that we can be human at
all. That is to say, that in order to be able to function as human
beings, we must have privacy. Umberto Eco, linguist, semiologist,
university professor, and distinguished novelist, introduces the idea
that individuals have rights because they have bodies. "Q. If there are only preferences and no truths, what basis can we
find for a definition of what is universally intolerable: one that the
whole world can support and that is independent of cultural,
educational or religious differences? A. On respect for the body. One could construct a whole ethic based
on respect for the body and its functions: eating, drinking, pissing,
shitting, sleeping, making love, talking, listening, and so on. To stop
someone sleeping at night, to force them to hang upside down, is a form
of intolerable torture. To forbid others to move or to speak is equally
intolerable. Rape does not respect the body of someone else. All types
of racism and exclusion are, in the end, ways of denying the body of
another. One could reinterpret the entire history of ethics in the
light of the rights of the body and the relationship of our body to the
rest of the world..." (Eco 1994, 54) The way of thinking which Eco utilises can be used to escape, to
some extent, the claims that human rights have no basis in an objective
reality. The concept which he endorses tends to give a cross cultural
basis for judging the validity of human rights. We might say, then, that by looking at the needs of people's bodies,
we can judge which rights people can make a claim to. Since, for
certain of the functions of the body of the person, such as excretion
and sexual activity, privacy is highly preferable, and since the human
race cannot exist without these functions being performed at some time,
we can reasonably conclude that the right to privacy is based upon the
right to continue to exist. Our bodies have functions, and therefore
needs as an outcome of those functions. One of those needs is
privacy. One could argue that there is no need for privacy at all, and that
we would all be much healthier and happier if everyone knew everything
about us. But there is a vast difference between an "optional" privacy,
which gives us the opportunity be as open as we like and to share all
our secrets if we see fit, and total mandatory disclosure, which might
easily cause information concerning our emotional, mental and physical
health to be made public knowledge in ways injurious to us. We are considering the confidentiality of records which contain
information on the individual. If all privacy can be said to be a human
right (because only privacy allows us to carry out essential bodily
functions,) then, in order to be allowed to live properly according to
Eco's criteria, we must have control over the confidentiality of
personal data about us. We need autonomy in order to become, and be,
human Therefore, we need privacy to perform the functions which keep us in
existence as human beings. This free functioning of our bodies has been
described as autonomy, and this autonomy is claimed as a right by
Judith Squires, of the Department of Politics, University of
Bristol. "....For the body can be viewed as one of the core territories of
the self: control over one's body is crucial to the maintenance of a
sense of self and hence the ability to interact openly with others. To
have control over one's own bodily integrity (to regulate access to it)
and to have this integrity recognised, is a minimal precondition for
free and equal social interaction. To ensure the possibility of such an
embodied autonomy for all persons in contemporary society...we will
need a political defence of privacy rights." (Squires 1994, 399) Squires can be seen to be taking the argument which Eco started one
step further, by implying that control over one's body, which is a need
inherent in the ownership of a body, can only be attained by having
privacy. Access to information about the activities of the body of the
person can be seen as equivalent to access to the body of the person,
because the opportunity for access to the body gives whoever has access
the option to injure, and information about the body also gives this
option. Persons planning to harm an individual gather information on
the individual in order to facilitate an attack. (U.S. Army Military
Police School n.d., 17) Privacy can be seen as enabling the growth of autonomy. Only by
allowing the individual time and space to experiment with her sense of
judgment, I would argue, can moral judgment be fostered. By being able
to practise taking autonomous decisions, an individual learns how to
make moral decisions. In a liberal, representative, democracy, where we
assume that decisions will be made by the will of the people,
encouraging moral development in the individual must increase the
likelihood of well thought-out moral decisions to achieve common ends.
By giving the individual the privacy to develop moral judgment, we
foster a moral society. "We cannot learn to be autonomous save by practising independent
judgment. It is important for the moral education of children that at a
certain stage they should find the rules porous- that sometimes they
should be left to decide with is best to do. Not many of us perhaps
have gone so far along the road to moral maturity that we can bear
unrelenting exposure to criticism without flinching." (Benn 1971,
242) In order for any individual to become an individual, the person
concerned must be allowed to think her own thoughts in her own time.
When a person is always under scrutiny, and knows that she is always
under scrutiny, she can only act in a manner which reduces the
likelihood that she will attract hostile attention. Her behaviour and
thoughts and speech will either tend to those of the crowd, or else she
will refrain from all contribution to society, by hiding. If we, as a
society, want to foster the development of individuals, and discourage
the growth and power of mob rule, we must give individuals privacy. "The man who is compelled to live every minute of his life among
others and whose every need, thought, desire, fancy, or gratification
is subject to public scrutiny, has been deprived of his individuality
and human dignity. Such an individual merges with the mass." (Bloustein
1964, 188) We need privacy in order to develop into creative
humans A liberal democracy can reach its highest potential when all of the
citizens of the state can contribute to society in their own way, which
cannot be predicted or commanded . A liberal democracy flourishes by
encouraging creativity, which multiplies the options and opportunities
available to society. The individual needs privacy. Humans are more than ciphers with
rigid roles in an economic system, and if humans are treated as
ciphers, the system itself loses much of what the individual has to
offer. One of the most productive ways the individual can contribute to
society is by creating and developing new ideas. Creativity flourishes
when the individual has an opportunity to listen to herself and foster
her talents. To do that, the person must have an environment which
enables her to nurture her ideas. (Of course, since people have within themselves the potential and
the capability to be creative, and since we have based our argument for
rights on the functions that a human body can carry out, we could say
that restraining or otherwise preventing human creativity is also
tantamount to denying a human right.) Since the possibility of creativity is an outcome of autonomy, and
since the development of autonomy necessitates privacy, therefore in
order for humans to fulfil their creative function, they must have
privacy. Only with the time and space to be alone can true creativity
flourish. When people are continually being watched and prodded to
conform, they cannot pay attention to their inner selves. From a
person's inner self comes the different and the new, which with proper
encouragement become innovative ideas. If we allow the individual the
time and opportunity to contemplate her own ideas, creative work can
occur. "Studies of creativity show that it is in reflective solitude and
even daydreaming during moments of reserve that most creative
non-verbal thought takes place. At such moments the individual runs
ideas and impressions through his mind in a flow of associations; the
active presence of others tends to inhibit this process." (Westin 1967,
37) The possibility of making mistakes without sanctions enables
learning, and thus creativity. Without the feeling that one can make
mistakes quietly on the way to learning, and the opportunity to learn
by making mistakes, neither learning nor creativity will occur, except,
perhaps, among people brave enough, or foolish enough, to be willing to
fail and be embarrassed in public. "No one likes to fail, and learning requires trial and error, some
practice of skills, some abortive first attempts before we are
sufficiently pleased with our creation to subject it to public
scrutiny. In the absence of privacy we would dare less, because all our
early failures would be on record. We would only do what we thought we
could do well. Public failures make us unlikely to try again." (Gavison
1980, 364) We need privacy in order to become and be social
humans Humans need a social life. Social life is an aspect of autonomous
human life, and building a social sphere means incorporating privacy
for individuals, for without privacy, the individuals will not be able
to act socially. Privacy seems to play a major role in enabling social
interaction. The very existence of a spectator eliminates the
possibility of certain relationships. "...He [the observer] is making use of the outward appearance of
those involved in intimacy. Whether it is used as a means to sensual
satisfaction or as a means to learn about the experience, it is still
being used. And this is an affront to the relationship of which it is
an intrinsic part." (Gerstein 1978, 270) By eliminating the possibility of a circumstance where friendship,
love, or worship can happen the observer snatches away the fulfilment
of a human need. Simply by observing, he destroys whatever relationship
he observes. The observer, by forbidding these human functions, thus
acts in an immoral manner, that is, denies the rights of the body, as
defined by Eco. The individual's freedom of action in the social sphere depends upon
control over whether, and how, the relationship is observed. For
example, if a courting couple is accompanied by a chaperone, then the
behaviour of the couple might very well be different from the behaviour
of a courting couple not accompanied by a chaperone! Information about
the relationship is an integral part of the relationship. Only when
individuals have control over the information about themselves that
they are imparting to one another, can individuals have control over
the kind of relation they will have with one another. Only then can we
truly say that the individuals have control over their own
behaviour. As Rachels summed it up: "We now have an explanation of the value of privacy in ordinary
situations in which we have nothing to hide. The explanation is that,
even in the most common and unremarkable circumstances, we regulate our
behaviour according to the kinds of relationships we have with the
people around us. If we cannot control who has access to us, sometimes
including and sometimes excluding various people, then we cannot
control the patterns of behaviour we need to adopt (this is one reason
why privacy is an aspect of liberty) or the kinds of relations with
other people that we will have." (Rachels 1975, 296) Personal values must be chosen freely, if the values are truly to reflect the individual. Friendship implies shared values. Individuals are truly free to choose both values and friends only when they have privacy, and thus are free from outside pressure.
Distance from supervision gives a person time to choose between
values. When the individual is continuously under surveillance, of
whatever form, and however kindly meant, the ability of that individual
to judge between differing sets of values is reduced. Without privacy,
only an acceptance of values accepted by the mass of society will be
seen as feasible by an individual. Values at odds with those which the
mass finds comfortable will be untenable, since public scrutiny will be
instant and implacable. Some values cherished by the mob are bad for
individuals or for society, but privacy shelters the possibility of
true personal choice. "Privacy, I wish to suggest, insulates individual objectives from
social scrutiny. Social scrutiny can generally be expected to move
individuals in the direction of the socially useful. Privacy insulates
people from this kind of accountability and thereby protects the realm
of the personal." (Schoeman 1984, 415) Social utility is not necessarily the highest value in liberal
democratic society. Privacy, by sheltering the individual from the
constant judgment of society, allows individuals to consider personal
as well as social values. In this way, privacy affords to the
individual the personal autonomy and freedom of choice which is
demanded of an individual who has to participate in democratic
politics. We have seen in this chapter that, by enabling political activism,
individual moral growth, creativity, and a social life, privacy gives
to the individual the ability to fulfil her potential as a human. In
order to foster her autonomy, the individual must have, and be seen to
have, the privacy to act without the constant reminder of the will of
society. I believe that any infringement on the right to information
privacy is tantamount to questioning the right of a person to exist,
since I see such infringement restricting the possibility of the person
to carry out the functions her body needs. Our next chapter will show how the growing number of databases
containing information on individuals, and the growing sophistication
of the tools available to combine and analyse these databases, greatly
increase the threat to individual privacy and therefore to personal
autonomy. Privacy, Databases, and Jewish LawChapter TwoThis second chapter describes how computer databases and database
search techniques impinge on privacy. "I saw her death coming. In the patterns you sometimes imagined you
could detect in the dance of the street. Those patterns are real. I am
complex enough, in my narrow way, to read those dances...I saw her
death in her need for you, in the magnetic code of the lock on the door
of your coffin in Cheap Hotel, in Julie Deane's account with a Hong
Kong shirtmaker. As clear to me as the shadow of a tumour to a surgeon
studying a patient's scan." (Gibson 1986, 305) The purchases we make, the people we meet, and the places we
frequent, when combined and analysed, contrive to produce a portrait of
the individual which can supposedly predict patterns of behaviour. In
the speech quoted above, the protagonist in a science fiction novel, an
intelligent, self-aware computer, explains how analysis of transaction
databases appears to the machine carrying out the analysis. This
chapter explores the resources and tools which bring the fantasy, or
perhaps the horror, of the novel, closer to our shared reality. Commercial databases Various commercial databases contain information which has been
gathered in order to facilitate purchases of goods and services, and
some of those databases will be described here. These databases are being examined because librarians, especially
librarians working in or for commercial enterprises, use these
databases to answer queries put to them by their employers or
customers. These databases are accessible to anyone with enough money
to buy the necessary hardware and open an account with a credit rating
or direct mail database provider. What information on individuals do the commercial databases contain?
A marketing database, used for mailing-list production in the United
Kingdom, for example, contains the following information: Age, gender,
income, occupation, age of children, birthdays, child's birthdays,
daily newspaper, home ownership status, length of residence in current
home, property type, mains gas/non-mains gas, reasons for choice (of
store), stores shopped at, how much and where most of the grocery
shopping is done, how much and where the rest of the grocery shopping
is done, distance to store from home, mail order shopping companies
used, local papers, Sunday paper, magazines, number of cars, main and
second car make, names of charities to which donations have been made,
names of hobbies, whether and what kind of health insurance is held,
whether there is a telephone banking account, which credit cards are
held, which durables are owned and which are planned to be purchased,
which home improvements have been made and which are planned, which
financial services are used, which insurance policies are held, and
which types of investments are held. (Chorus lifestyles database
(booklet), CCN Marketing, no date) Data obtained from consumers for one stated purpose and included in
one database of this company, is then used for many other ends,
frequently without the knowledge by the consumer that the information
she provided will be used by the company to add value to this database
it holds. Since the company is involved in many aspects of data
collection, including credit rating and marketing, the company neatly,
and legally, evades data protection regulation. This can be seen as
"talebearing" (a concept explained in the next chapter) and the strong
likelihood of its happening enhances the need for a moral basis for
information privacy, understood by all those who manipulate such
files. Another database, held by the same organisation, and designed to be
used by firms wishing to extend credit to consumers, contains
information on items bought using credit cards or with credit
arrangements by an individual at a large number of retail firms: "The CAIS file consists of the computerised monthly sales ledger
files from 100 finance houses, building societies, credit card
companies, retail stores and mail order companies. These files together
provide a very accurate picture of a consumer's payment pattern,
including the identification of accounts that have resulted in a bad
debt." (CCN Marketing, Credit screening: reducing credit rejection
rates from mailing respondents, August 1991) Of course, it might be argued that similar records have always been
kept on paper. However, the ability which the advance of database
technology has given us, to collect and analyse these records and
compare them to other records held anywhere (at infinitesimal cost per
record,) produces an entirely novel level of privacy infringement. Databases are maintained by bookstores, which list all the books an
individual purchased, together with the address for the individual.
Supermarkets are investing vast resources into customer databases,
containing information obtained by the use of preference cards which
provide various benefits for the customer. These databases are related
to those used for stock control. However, tracking an individual human
and tracking an individual product are morally different. The human may
be assumed to have a right to privacy, which the box of soap powder
cannot claim. In former times, an individual may have been able to function
without sharing information with outside bureaucracies. In our day and
age, everyone needs credit references, whether they wish to open a bank
account, take out a loan, rent a house, rent a car, or even buy a sofa
on instalments. A list of the social contacts made by an individual can be produced
from telephone company call and billing records, as described by two
employees of British Telecom, who are working to extract value from
data: "BT has huge volumes of data from 20 million customer accounts, call
records, equipment records and fault logs. Potentially valuable
information is hidden within these databases and is underexploited."
(Shortland and Scarfe 1994, 17) Our society is currently structured so that almost any action which
an individual wants to take- whether one wishes to buy groceries-
travel by bus or rail- read a current novel- or send a package to a
friend- needs to be paid for. Since for many years the use of credit
and debit cards has been encouraged, individuals paying for anything
tend to produce records. The records produced by purchases can be
imagined by the individual concerned to resemble the trails left by a
person walking across snow or wet sand. We tend to view them as
transient. Organisations, however, increasingly tend to treat such
records as permanent, valuable, and of use to themselves. Credit rating
and marketing databases are produced as a product to be sold, and the
files are sold, to anyone with enough money. The public at large thus
has access to these records. We can use many measures to decide whether a society is a free
society. One which can perhaps be used, is the extent to which the
society preserves for the individual, the right to decide which of her
private actions may be known to the public at large. Westin holds that
this measure is the basic essence of individual privacy. "...this is the core of the "right of individual privacy"- the right
of the individual to decide for himself, with only extraordinary
exceptions in the interests of society, when and on what terms his acts
should be revealed to the general public." (Westin 1967, 42) Database analysis techniques This section of the chapter will look at the reasons and concepts
behind database analysis, show the consequences of these ideas, examine
various database analysis techniques, and explain how they do their
job. Databases all contain information which can be analysed in order to
produce portraits of "individuals". These portraits are based upon
calculations which claim to show that certain buying patterns, certain
financial decision patterns, or certain social contact patterns, can be
associated with identifiable groups, and can be used to predict
reliably the behaviour of individual members of those groups. In reality, however, what the database analysts have produced are
profiles of a composite, hypothetical creature, by analysing large
volumes of data. These profiles may then be used to make predictions
about actual individuals, who have only a certain resemblance to the
profiles, and possibly only a passing connection, if any, to the groups
the analysts have identified. Techniques for analysing databases are used both to reduce risks for
organisations and to increase profits. Risk reduction is most commonly
used when credit is extended or insurance sold. Profits are increased
by changing the product or the product mix to better suit the consumer
base. Changing the product can be used both in retail establishments
and in the design of mailings. Database analysis is used in order to make and save money.
Organisations save money by having machines make decisions. Decisions
can thus be made more quickly. Fewer people may need to be employed to
make the decisions. The decision can always be blamed on the machine,
since the assumptions which lead to the decision are buried within the
system. When a human makes a decision, assumptions which the person
uses in order to make a decision are much easier to question. By the
time a mistake is made by the system, the people who caused the system
to act in an erroneous fashion, the system analysts, interface
designers, and programmers, have moved on to their next contract, and
the users of the program can blame the mistake on the system, which
tends to be regarded as infallible, as shown by a case, where a
mistaken first name very nearly ended the career of a Prison Service
employee before it started, as explained by Duncan Campbell in the
Guardian: "...it is a problem of getting people to understand that it [what is
contained on the police national computer] is an Ôapparent'
identity." (Campbell 1995, 11) Identifying and classifying individuals who are likely to increase
the profits of the organisation is becoming one of the key roles of
commercial databases. Finding and tracking individuals who are likely
to bring profit or cause loss to companies are actions which can be
justified to accountants and therefore will probably be encouraged.
However, if individuals have a moral right to privacy, which benefits
both individuals and the society where they live, it is hard to justify
the exercise whereby greater profit is obtained by infringing the
privacy of the individual. The answers which the systems give seem to improve mailing response
rates. Most of the systems and much of the technology was produced for
commercial purposes, wherein increasing accuracy and improving profits
by a few percentage points is a reasonable goal. The data is analysed
in order to find simple explanations for groups of variables. The
explanations have to be simplistic enough to be used for designing a
marketing campaign, because the groups described by the analysis have
to be groups to whom products or services can be sold. The analysis process spans many steps between the events being
recorded, and the conclusion. The connection between the actions of the
individual and the group wherein the individual is placed by the
analysis can be very tenuous. The variables chosen to produce the
groups, whether they are derived from purchases of food, periodicals,
or services, are based upon hypotheses. The hypotheses which the
designers of the systems use are hidden within the system and therefore
difficult to question, simply because they are very rarely made
explicit to the consumer. The reasoning behind the creation of the
portraits of individuals produced by the database analysis techniques
may have very little to do with the need to achieve reliability and
accuracy, and a lot to do with the need to improve marketing
efficiency. So long as the technique produces some improvement, the
technique is perceived by the users to be accurate enough. Since all the techniques are based upon statistical likelihoods,
they can not actually show with certainty that a given individual will
carry out a specific activity. What they claim to do is increase the
accuracy of a prediction. Individuals will suffer if their portrait, as
produced by analysis of their spending patterns, matches to some extent
the profile of a group which is not favoured by the organisation
carrying out the pattern matching. Which tools can be used to analyse the information contained
in these databases? This section will explain how some of these tools do their work. We
will look at cluster analysis, bloc modelling, profiling, and data
mining. Cluster analysis is a statistical tool, which looks at individuals
and their behaviours, and sorts them into groups based upon shared
behaviours. Products can then be targeted at these groups. An example
are the "psychodynamic groups" used by a marketing company, which
claims to sort the entire population into seven groups, based upon
their calculated temperament types. "The Psyche postcode directory allows every individual in the
country to be classified on the basis of values and for customer,
respondent or research files to be profiled and segmented on the basis
of a values-driven segmentation. The seven social values groups: Self explorer, Experimentalist,
Conspicuous consumer, Belonger, Social resister, Survivor, Aimless."
(Psyche values-driven segmentation, Synergy consulting and CCN
marketing, no date) Bloc modelling is a sociological research technique which looks at
the roles and relationships of individuals. It looks at the role of an
individual in an organisation, and the set of relationships which that
individual has with other individuals in the organisation. People who
hold similar positions in an organisation and have specific
relationships with other individuals will be classed into similar
groups. The individuals in the groups may not know each other or have
any idea that they are seen as belonging to a group. The data on
relationships may come from telephone company records, electronic mail
records, or any other data which can be used to show relationships
between pairs of individuals . (Hunter January 1985) For example, "Street-level drug suppliers, working for one particular
distribution organization, could be seen as stochastically equivalent
if they, as a group, (emphasis added) all knew roughly 70 percent of
the group, did not mix with street level dealers from any other
organizations, all received their supplies from one person, and
delivered their cash to just one, randomly selected, of three
collectors." (Sparrow 1991, 268). In other words, if you know the wrong people, you stand a good
chance of being suspected of crime. In the same fashion, credit ratings
have been ruined for people living in the same building as someone with
a bad credit rating. Datamining is a concept which embraces a set of mathematical and
artificial intelligence techniques used to extract meaning from large
collections of records produced by commercial transactions. Datamining
is used to make explicit the patterns with meaning which are implicit
in these large databases. For example, if a large chain of supermarkets
notices, that at the end of the working day, men are discovered to
increase their purchases of diapers and beer, the organisation can
place displays containing the two sets of items in close proximity, in
order to encourage this purchasing pattern. The patterns with meaning
are important when they can be used to make commercial decisions. For
example, targeting of mailings to people who are most likely to respond
can reduce the cost of a mailing marketing campaign. (Shortland and
Scarfe October 1994) In datamining the patterns found in the data might be caused by
reasons not connected to the individuals concerned, but the individuals
will nevertheless be grouped because the programme seems to find a
connection. The assumptions behind the choice of variables will cause
certain patterns to be found, and other patterns to be missed. For
example, if the subject of interest is "humans who are interested in
healthy living", the likelihood of the programme finding individuals
who use supermarket membership cards and pay by credit or debit cards
is significantly higher than of the programme finding individuals who
frequent the neighbourhood greengrocer and pay cash, simply because the
former information is easier to collect than the latter. Profiling uses the information produced by cluster analysis, bloc
modelling, or datamining, and takes the profile of a type of person
produced by any of these techniques. The profile is then compared with
data on an individual in order to sort the individuals into groups. The
groups which the individuals fall into can be used in order to make
decision about the type of products or services to be offered to the
individual. (Clarke December 1993 ) Databases impinge on privacy This section of the chapter will explain how the application of
database analysis tools leads to invasion of individual privacy. There is a great deal of media hyperbole, which tends to lead us to
believe that technological progress in the field of database technology
will inevitably work to the benefit of society, but no technology is
inherently beneficial. In order for society to benefit from any
technology, the assumptions behind the implementation of the
technology, the implementation itself, and all the implications of the
technology need to be beneficial for society. "To ensure the possibility of such an embodied autonomy for all
persons in contemporary society-with all its multifarious mechanisms of
observation and control-we will need a political defence of privacy
rights." (Squires 1994, 399) Why does the nature of database technologies inevitably compromise
individual privacy? The possibility of privacy and anonymity has
diminished due to the rise of database analysis technology. Before
database technology was affordable, and before such a large proportion
of purchases were made by means which leave a trace, such as credit,
debit, and affiliation cards, producing a picture of an individual by
use of database analysis was not possible. The only way to get to know
a person was by spending time and money with the person or with people
close to the person. Large computer databases, used with database analysis tools, are
specifically designed to find information on individuals. Since
machines can track individuals, machines will tend to be used to track
individuals. The commercial databases, and especially the tools used to
analyse the commercial databases, inevitably give to the owners of the
databases the ability to identify individuals and classify those
individuals. Not only does database analysis impinge on privacy, but by the very
nature of the beast, because of who sired it and why it was brought
into the world, database technology is bound to be used to control
individuals and attack privacy. Computer technology development has been funded by two main sources,
both of whose goals have been to increase their efficiency at
controlling large organisations. The two main sources for funding in
computer technology have been the military, and large business
corporations. Both of these sources, in order to function, need to be
able to keep track of large numbers of items, whether the items are
people, cash transfers, or tanks. In order to keep track of large
numbers of items, these two types of organisations have a need for
large databases and tools to analyse these databases. Inevitably, the
need to control the information has been a major driving force behind
database development, and remains one of the chief themes within
database technology. By using database technology to keep track of
information connected to the daily lives of individuals, database
managers are given control over this sort of information, and by doing
this they inevitably infringe on individual privacy. The managers of large databases are duty bound to attempt to
increase profits for shareholders, and actions which infringe privacy,
using popular software methodologies, tend to do so. Theodore Roszak expressed how vital this corporate and military role
was to the development of computer technology: "If computer science had not promised a handsome payoff to the
military and corporate buyers who could afford its costly research and
development, there would have been no chess-playing programmes, no
Pac-Man games, no NEXIS database, no Turtle Graphics." (Roszak 1994,
205) Efficiency, and the ability given by information technology to track
and control large numbers of individuals, tends to override any other
set of values. Types of technology imply types of political systems.
The internal operational management structures within the armed forces
for example, where lethal technologies are employed, must be
authoritarian, in order to keep these technologies under control. Some
technologies, for example large scale database technologies, tend to
encourage and facilitate central decisionmaking and control, and
discourage individual thought and choice. How do the tools used for database analysis compromise individual
privacy? By breaking populations into groups, and finding populations
which exhibit desired behaviour, and correlating desired behaviour with
other attributes or behaviours of groups. When database analysts use
these tools, they can identify individuals who fall into certain
targeted classes. "[This] element is present in data surveillance-the maintenance of
such detailed daily and cumulative records of each individual's
personal transactions that computerised systems can reconstruct his
acts and use such data for social control even without direct physical
surveillance." (Westin 1967, 59) The design of the systems themselves causes power to flow from the
weak to the powerful, just as a cup causes people to use the cup for
drinking (rather than for digging ditches). That is to say, computers
are suited to control many people, and cups are suited to drinking.
Since large databases are specifically designed to track large numbers
of records, and since market forces compel companies to improve
marketing techniques, ways have been found to discover the individuals
who are more likely to purchase certain products and services. By
analysing transaction records, and determining from the analysis of the
records that a given individual is more likely to purchase a given
item, the system has effectively classed certain individuals as worthy
of marketing attention, and other individuals as unworthy. Thus, a
large portion of the population would effectively be written off. I
would argue that the same techniques which are currently used to
evaluate credit ratings could equally well be used to class individuals
as worthy of police attention. Buying goods or services in locations
where known criminals make their purchases would cause an individual to
fall under suspicion. Unfortunately, the accuracy of the prediction
will not increase even if the aims of the classification (from
commercial to criminological) change, since the method only produces
increased statistical probability of correlation, not positive proof of
causation. Two justifications are commonly used when introducing database
technology. Either the database analysis tool saves money or it reduces
crime, and sometimes both at the same time. Privacy is definitely being
infringed. Benefits may possibly accrue. We must ask: does the
uncertain benefit outweigh the certain evil? Bad governments certainly can be in power, and even good governments
do bad things. Facilitating mass surveillance will increase the
likelihood of mass surveillance, and decrease the likelihood of
political change. Political change will become easier for central
government and large commercial organisations to repress, since the
early signs of political dissidence, (or at least what are assumed to
be the early signs of political dissidence) will be detected by mass
data surveillance. Such techniques are already in use in order to
detect people who are likely to commit violent crimes or likely to
evade tax (Clarke 1994), and the rapidly falling cost of such
techniques will enable widespread use. If large and powerful organisations can truly know what an
individual is doing, or even if organisations only believe that the
techniques they use to analyse data can tell them about the actions,
motives, and character of an individual, then the individual is no
longer free to act. The only interests which the individual will be
able to serve will be commercial or government interests. The
individual will feel constrained to act all the time in a manner which
reduces the risk of unfavourable judgment. That "unfavourable judgment"
might influence the likelihood of getting a job, getting a credit card,
getting a mortgage, receiving health care, or being placed under police
surveillance. To illustrate this point we may care to peruse the following
quotation: "Unless steps are taken to prevent it, we may develop systems
capable of a perpetual, pervasive, apparently benign surveillance.
Confronted with omnipresent, all-seeing data banks, the populace may
find passivity and compliance the safest route, avoiding activities
that once represented political liberty. As a badge of civic pride a
citizen may announce, "I'm not involved in anything a computer would
find the least bit interesting." " (Winner 1989, 115) Proactive policing, by targeting and carrying out physical
surveillance or preventive detention on individuals who have profiles
which suggest that they are likely to commit crimes, could be used, and
justified as a way to cut costs for the community. Instead of a
suspicious person being investigated, data surveillance can be used to
manufacture suspicious people. An innocent person will be seen as
suspicious not because of criminal behaviour, but because of likelihood
of criminal behaviour, based upon statistical probability of
correlation judged to be reliable. In addition, the causes of crime do
not need to be attended to. The crime is seen as exclusively due to the
individual, and environmental factors are seen only as tools to find
the individual likely to commit crime. Preventive health care, which would base the likelihood of access to
health care upon the participation of the individual in programmes to
prevent illness, based upon profiles which predict likelihood of
illness, could be used, and justified as a way to cut costs for the
community. Some might argue that having to justify all lifestyle
choices on a permanent basis, and to authorities beyond whom there is
no appeal might not be seen as a totally acceptable way of life. Powerful machines are designed for, and owned by, powerful
organisations. Only large, rich organisations can afford to buy, run,
and maintain them. These organisations will use these machines to
increase power over individuals by knowing more about individuals.
Database technology tends to give more power to people who have money
and power, and take privacy and autonomy away from everybody else. Only
people who can afford to maintain large databases, with staff trained
to analyse the data, will be able to benefit from the technology. This
means big business or government. Organisations with power will have
its maintenance as their prime objective, or as Langdon Winner puts
it: "Those best situated to take advantage of the power of a new
technology are often those previously well situated by dint of wealth,
social standing, and institutional position. Thus, if there is to be a
computer revolution, the best guess is that it will have a distinctly
conservative character." (Winner 1989, 107) Once the information has been collected and processed in order to
assist in the commercial success of a company, the same information is
then available, just as the contents of credit databases is available,
to those willing to pay. Infringement of privacy by databases can
threaten our security because the purchasers of the data may have
malevolent intentions towards us. Mailing lists based upon profiles of
individuals who possess or are likely to possess expensive consumer
goods would be a boon for burglars, for example. Legislation is easily
bypassed by commercial interests who move processes overseas or buy
database files together with the companies who own the files, to
exploit as part of a mix of marketing and credit interests. Perhaps the greatest irony is that there is no need for vast
databases containing information on individuals to be accessible to
anyone. By the use of better database design, companies can guard
against fraudulent customers without infringing the privacy of the
individual, through the use of available cryptographic technology,
already in use. (Chaum 1990) We are observed by remote analysis of our commercial transactions.
We are not asked whether information collected for one purpose, which
may be legitimate (for example, in order to ensure payment) may be used
for another (for example, in order to produce profits for mailing lists
merchants). In other words: "Privacy is not simply an absence of information about us in the
minds of others; rather it is the control we have over information
about ourselves." (Fried 1968, 209) Perhaps only a divine being should be given the knowledge of all
that resides in the heart of a human being: Jeremiah chapter 17 verse 9, 10: "Most devious is the heart; it is
perverse - who can fathom it? I the Lord probe the heart, search the
mind - to repay every man according to his ways, with the proper fruit
of his deeds." Perhaps the motives of the database controllers and analysts, who
strive to discover what is hidden in the human heart, are not quite as
pure as the motives of God. In the next chapter, we shall look at the Jewish approach to
privacy. Privacy, Databases, and Jewish lawChapter ThreeIn the first chapter this paper looked at some ideas concerning the
Western, liberal, view of privacy for the individual. This chapter will
examine some concepts inherent in the Jewish, religious, view of
privacy. In order to provide some background, the chapter will start by
looking at the biblical verses from which the Jewish laws of privacy
are derived, and the basic interpretations of these biblical verses
which are used to produce the laws. The laws themselves will then be
enumerated. Finally, the concepts underlying the laws will be
analysed. What are the biblical verses and their
interpretation? The Talmud is the basic text, from which all codifications of Jewish
law are derived. In addition to references from the Talmud, scholars
also use the centuries of codifications and case law written by Jewish
judges. The Talmud bases its ruling on a biblical verse, the law
relating to which is given in the section of the Talmud called the
Mishnah. The reasoning behind the Mishnaic law is discussed and
expanded upon in the section following each Mishnah, called the
Gemara. Jewish law exists in its present form due to a long process. Traditionally, the law, the collective term for which is the "Torah", was given to Moses by God on Mount Sinai, and Moses handed it down to Joshua, and so on down through the generations to the present day. Jewish law is based on biblical passages, which were interpreted in the Talmud, and codified by many scholars down through the generations. In this section the biblical verses upon which Jewish privacy law is based will be introduced.
The traditional view of the transmission of Jewish law is
illustrated in the following quotation: "Moses received Torah from Sinai, and transmitted it to Joshua,
Joshua to the Elders, the Elders to the Prophets, and the prophets
transmitted it to the Men of the Great Assembly." Kehati, a modern day
commentator on the Mishnah, goes on to explain: "The mishnah begins
with the history of the tradition and its transmission from Moshe
Rabenu to the Men of the Great Assembly, the first of whom were the
last of the prophets - Haggai, Zekhariah and Malakhi, and the last of
whom were the first sages of the Talmud." (Chapters of the fathers:
with a commentary by Rabbi Pinhas Kehati, Chapter 1, Mishnah 1) Since there are very many translations of the Bible and the other
works which will be cited here, and since the interpretations of the
texts can vary with the translations, the specific books and editions
of the translations of text and commentary will be provided in the
bibliography. One verse, from the Book of Numbers, reports an incident wherein
Balaam, a prophet, has been hired by Balaq, the king of Mo'av, to curse
the Children of Israel in order to stop their advance towards Mo'av
(situated in what is now the Kingdom of Jordan). The interesting verse
itself is the one wherein Balaam changes his mind and decides to bless
the Children of Israel instead of cursing them. The reason for this
change of mind seems to be the emphasis placed on privacy during the
pitching of the tents in the camp. Balaam is standing on a height and
viewing the entire camp. "And Balaam lifted up his eyes, and he saw Israel dwelling in his
tents according to their tribes; and the spirit of the eternal was upon
him." (The Pentateuch, The Book of Numbers, chapter 24, verse 2) Rashi, a mediaeval Jewish commentator on the Bible continues: "Dwelling according to his tribes: he saw each tribe dwelling by
itself not intermingled one with another; he saw that the entrances of
their tents were not exactly facing each other so that one could not
peer into the other's tent (Baba Batra 60a)" Rashi tends to base a great deal of his commentary on Talmudic
rulings, one of which is mentioned here, and this Talmudic ruling will
be examined later. There is stress laid in this verse on the importance of each family
being able to carry out its own affairs in private, without having to
consider the neighbours seeing what the family is doing. The autonomy
of the family unit seems to receive emphasis and encouragement. In another biblical verse, this time taken from the Book of Exodus,
what seems to be implied, is that the very act of counting people,
which is the most basic information which can be obtained about them,
is, in itself, already a questionable undertaking. The act of counting
the people had to be offset by an offering in order to counteract its
offensiveness. "When thou takest the sum of the Children of Israel according to
their muster, then shall they give every man a ransom for his soul unto
the eternal, when thou musterest them; that there be no calamity among
them when thou musterest them." (The Pentateuch, The Book of Exodus,
chapter 30, verse 12) Rashi interprets as follows: "That there be no calamity among them - for number (i.e. things that
have been numbered) are subject to the influence of the "Evil Eye", and
therefore if you count them by their polls (directly, by pointing at
their heads) pestilence may befall them, as we find happened in the
days of David (2 Samuel chapter 24 verse 10 and verse 15)" There are many explanation for the unfortunate consequences of the
census held by David. Many commentators feel that David was acting
against the will of God, either because David counted the people
without divine instruction, or because David counted the people in
order to gauge the strength of the army, and in so doing, doubted the
influence of God in the outcome of Israel's wars, or because David
counted the people directly, and not in the form used in the Book of
Exodus, for there the people each gave a shekel to the temple, and the
coins were counted, and not the people directly. Verse 10: "And David's heart smote him after he had numbered the
people." Verse 15: "So the Lord sent a pestilence upon Yisra'el from
the morning even to the time appointed: and there died of the people
from Dan even to Be'er-sheva seventy thousand men." (The Holy
Scriptures, The Second Book of Samuel, chapter 24) "Abarbanel, after carefully evaluating the above stated views,
favors Gersonides interpretation that David's sin was not in the act,
but in the spirit with which he went about taking the census; since the
census indicated that he had placed his faith in military might."
(Samuel 2, chapter 24, verse 1, commentary digest) David can be seen as infringing upon God's relationship to the
Jewish people, or perhaps in seeing himself as of too great importance,
in that only God needs to know exactly how many people there are. David
is thus trusting in the bureaucracy which he established rather than in
God. Perhaps we could say, that a human is not seen as justified in
wishing to have such knowledge about other humans. The following verses are the basis for many laws forbidding gossip
and slander: "Thou shalt not go about as a talebearer among thy people; neither
shalt thou stand against the blood of thy fellow: I am the eternal."
(The Pentateuch, The Book of Leviticus, chapter 19, verse 16) "A talebearer reveals secrets: but he that is of a faithful spirit
conceals the matter" (The Holy Scriptures, Proverbs, chapter 11, verse
13) Telling stories about people we know, even true stories, is seen as
damaging to the fabric of the community, by breaking down trust and
fomenting strife. The talebearer is seen as an evil person. What are the religious laws concerning privacy? The two quotations from the Talmud which are brought below, both
deal with the laws of privacy relating to gathering information about
another individual. That section of the Talmud know as the Mishnah
gives the ruling, and then the section known as the Gemara explains the
reasoning behind the ruling, based on biblical verses. "Mishnah. In a courtyard which he shares with others a man should
not open a door facing another person's door nor a window facing
another person's window. If it is small he should not enlarge it, and
he should not turn one into two... Gemara. Whence are these rules derived? - R. Johanan said: from the
verse of the scripture, "and Balaam lifted up his eyes and he saw
Israel dwelling according to their tribes" this indicates that he saw
that the doors of their tents did not exactly face one another,
whereupon he exclaimed: "worthy are these that the divine presence
should rest upon them!" " (Hebrew English edition of the Babylonian
Talmud, Tractate Baba Bathra, Volume 1, page 60, side a) We can see from the quotation above that the act of preserving
privacy is worthy of praise. Since Jewish religious law is not the law
of the land anywhere, all we can use it for is inspiration. The moral
significance of privacy is being examined, not the legislation, since
without a deep understanding of the moral significance of privacy, laws
and codes will be disregarded. "Mishnah....If there are windows [in the neighbour's wall], he must
leave a clear space whether above or below or opposite. Gemara....We learnt: if there are windows [in the neighbour's wall]
he must leave a clear space of four cubits whether above or below or
opposite; and in a Baraitha commenting on this is stated that a space
must be left Ôabove' so that he should not be able to peep in the
other one's room, and Ôbelow' so that he should not stand on
tiptoe and look in, and Ôopposite' so that he should not take
away his light." (Hebrew English edition of the Babylonian Talmud,
Tractate Baba Bathra, Volume 1, page 22, side a) In both of the above quotations from the Talmud we can see the
importance laid upon the privacy of an individual's behaviour in a
private space. Not only is the intrusion upon privacy forbidden, the
creation of circumstances wherein privacy intrusion can take place is
forbidden. The following decision was written by Maimonides, a most influential
rabbinical authority, and codifier of Jewish law, who lived about eight
hundred years ago. Maimonides was one of the first codifiers of Jewish
law. Before his time, and for many years afterwards, many rabbis ruled
on Jewish law directly from the Talmud and felt that codification
distanced Jewish law from its source in the Talmud. Maimonides based
himself upon the Talmudic ruling, used other rabbinic sources, and
formulated the law in a more precise form, going into great length.
Only a small section from his rulings on the subject is brought
here. "If one builds a wall at right angles to the window of the other he
must build it a handbreadth away from the window, and he must either
raise the wall four cubits higher than the window or build the top of
the wall slanting so that one cannot sit on it and peep through the
window" (The code of Maimonides, book twelve, the book of Acquisition,
laws concerning Neighbours, chapter 7, verse 4) This and other laws on the subject encourage Jews to believe that
everyone has an obligation to ensure that privacy will not be
infringed. The following passages deal with a concept closer to information
privacy of the individual, the laws of gossip and slander. Not only is
falsehood about another forbidden, but any information about an
individual must remain private. "The Gemara (Yuma 4b) teaches us that when a person tells you
something, do not think that you can repeat it to others unless you are
warned - "don't tell, it's confidential". On the contrary, anything at
all which someone tells you must be treated with strict
confidentiality, unless or until he gives you permission to repeat it."
(Cohen 1981, 81) The Talmud pronounces that everyone has a moral obligation to assume
that any information one receives from any individual is
confidential. "Unauthorized disclosure, whether the original information was
received by complete consent or by illegal intrusion, whether ethically
or unethically, remains prohibited by the Halachah." (Lamm 1967,
306) "As formulated by Maimonides (1135-1204), Mishneh Torah, Hilkhot
De'ot 7:2, "Who is a tale-bearer? One who carries reports and goes from
one person to another and says, ÔSo-and-so said this' or
ÔSuch and such have I heard about so-and-so'. Even if he tells
the truth, [the tale-bearer] destroys the world." (Bleich 1980, page
131) Truth does not excuse the violation of confidence. The acts of
gathering and sharing information about individuals are seen as evil
actions. Maimonides clarifies the rules concerning gossip in the following
quotation, where he seems to imply that gossip can cause bloodshed: "One who slanders his friends violates a negative commandment, as
the verse says: "Thou shalt not go up and down as a tale bearer among
thy people" (Leviticus 19:16). Although flogging is not applied for
this, it is a great sin which causes destruction of many souls in
Israel. For this reason the next verse says: "Neither shalt thou stand
against the blood of they neighbour". Learn what happened to Doeg the
Edomite! (1 Samuel 22:9-19)" (The book of knowledge, Mishneh Torah of
Maimonides, treatise 2: Discernment, chapter 7, verse 1: ) In addition, the act of obtaining information from the private
communications of an individual has been forbidden, as is noted in the
following quotation: "...the well-known post-Talmudic ban of Rabenu Gershom (965-1023 or
1040) forbidding the reading of another person's mail without
permission. This edict is cited by Be'er hagolah, Yoreh De'ah 334:123.
Sefer haleket, I, number 173, declares that Rabenu Gershom's ban is
based upon the admonition, "You shall not go as a talebearer among your
people" (Leviticus 19:16)" (Bleich 1980, page 128) Bleich refers to the ruling which specifically forbids the opening
and reading of any form of messages which are intended to be private,
and connects this ruling to a passage we have noted earlier, which
reinforced the prohibition on gossip, whether true or false. We see
again that there great importance placed upon the need to ensure
privacy for the individual. There are many laws concerning gossip, slander, and talebearing.
Most of the time one is forbidden to pass on any information concerning
a person to a third party, no matter how that information has been
obtained. There are specific conditions which must apply in order for
passing on information to be permitted: a) The fact that not passing on the information will definitely
cause financial damage or personal tragedy. b) The information must be believed to be accurate. c) The intent of the person passing the information must be to
prevent financial damage or personal tragedy. d) The fact that by passing on the information the damage will
definitely be averted. (Bleich 1979) "In Jewish law invasion of privacy was tantamount to trespass or
theft, and similarly punishable. There are ample precedents through
centuries of Jewish legal writings to indicate that the individual is
entitled to prevent the public from intruding upon or sometimes even
knowing about his private doings, correspondence, and other aspects of
his private domain." (Cohen 1981, 61-62) Invasion of privacy was seen as a very serious matter, and not only
was the creation of the possibility for privacy intrusion ruled illegal
in Jewish religious law, the act of invading privacy received heavy
criminal sanctions. This reinforces the importance of individual
privacy. "Significant in these laws is the acceptance of the principle that
interference with one's privacy constitutes legal damage for which one
can sue in court. Since, as a rule, penalties for damages or injuries
are exacted by the court only when a clear act of injury or damage has
been committed, the law that interference with another's privacy in
itself constitutes a damaging act is unique. It is another outgrowth of
the rabbinic concept of individualism." (Belkin 1979, 126-127) We can see that invasion of privacy was seen as a chargeable
offence, even when no physical or financial damage was caused by the
invasion of privacy. From all of the above we can see the significance
and importance of privacy in Jewish law. What are the concepts underlying the Jewish relationship to
privacy? "The fact that the neighbor knowingly suffered, for any length of time, other people to disturb his privacy, whether by peering into his premises or otherwise, does not prevent him from claiming the damage to be abated in the future. (B. Baba Batra 59b, Tur, Hoshen Mishpat 154:16); for it is not so much his own interest - which he may have waived - that is at stake, as rather a general interest in morality, decency, and public peace (Nachmanides and Alfassi, as quoted in Tur, loc. cit.)." (Cohn 1984, 66)
Cohn considers the various rulings, and proceeds to formulate a more
general principle, which can be applied to privacy of the individual.
Not only is there damage to the individual, but damage is foreseen to
the community if privacy to the individual is infringed. Ensuring
privacy for the individual helps to safeguard public morality. "The protection of privacy in Jewish law goes beyond prohibiting the
observation of another's activities. There is a legal duty to prevent
the possibility of observation that would infringe another's privacy;
the mere existence of such a possibility inhibits the freedom of an
individual to act as he wishes in his home or courtyard." (Elon 1994,
1860) Elon seems to be saying, that not only is the invasion of privacy
forbidden, but the very creation of circumstances where privacy can be,
or is likely to be invaded, is also forbidden. The underlying concept
seems to be, that the individual must be allowed to carry out her
affairs without the fear of surveillance. "Thus, the Halachah insists upon the responsibility of each
individual not to put himself into a position where he can pry into his
neighbor's personal domain, and this responsibility can be enforced by
the courts." (Lamm 1967, 303) Jewish law seems to be saying, that every person is responsible for
any invasion of privacy that they may be facilitating. The idea behind
the law appears to be, that every person should be able to assume that
everyone is helping to safeguard everyone else's privacy. "Visual or aural invasion of privacy is thus primarily a moral
offence, and the civil law and its requirements of monetary
compensation is derivative from it." (Lamm 1967, 304) Invading the privacy of another individual is evil. This evil acts to the detriment of: a) the individual invading the privacy of the other b) the individual whose privacy is being invaded c) the community. The Jewish laws are in place to prevent and stop the moral decline
caused by privacy invasion. When speaking of a national, central database for all vital
information about a citizen Lamm says: "What we are confronted with is an automated "evil tongue",
institutionalized gossip computerized for instant character
assassination....we may be sure that, by some as yet undiscovered law
that issues from the depths of human and social perversity, all kinds
of information will be forthcoming in an attempt to satisfy its
insatiable appetite for more and more facts, regardless or their
relevance, need, or accuracy." (Lamm 1967, 307) "...the Halachah comprises more than civil law; it includes a
sublime moral code. And its legal limit on voyeurism is matched by its
ethical curb on the citizen's potential exhibitionism. It regards
privacy not only as a legal right but also as a moral duty. We are
bidden to protect our own privacy from the eyes and ears of our
neighbours." (Lamm 1967, 308) We also see, that the individual has a duty to ensure her own
privacy. This seems to imply a moral duty to reduce the possibility of
privacy intrusion into her own affairs. "Man must tread the path of reverent privacy "with thy God" - for it
is from Him that we learn this form of conduct and Whom we imitate in
practicing it. So sacred is this center of privacy in man that even God does not
permit Himself to tamper with it; that is the meaning of the freedom of
will, the moral autonomy of man." (Lamm 1967, 311) Thus, privacy is part of what makes an individual liable for her
actions. The individual knows that she has freedom of will, and that
not even God enters into that part of her being. This perhaps is the
basis for the morality of privacy, that in order to be moral, one both
must have, and respect, privacy. Only because one has this moral
autonomy is one responsible for one's actions. In order to ensure that
one remains responsible for them, privacy for the individual must be
maintained. "...there never was surveillance by the state as to what one did in
private or what opinions one held. The very important biblical source for this liberal approach which
is too often overlooked, is found in Leviticus (chapter 15, verses 13
and 28). Males and females become temaaim (ritually unclean) because of
certain emissions from their genitals. To be relieved of such a state
they must undergo immersion in water, but first they must count clean
days. A man must count and a woman must count - there are separate
commands for him and for her. And after each command to count there
appears an added word meaning "for himself" and "for herself". No one
else counts for them. There is no supervision to make sure that they do
not cheat and thus accelerate the process of becoming tahor (ritually
clean). They are on their honor. Thus the Talmud interprets the verses.
And in this way it expanded the right to privacy some 2,000 years ago."
(Rackmann 1982, 31) God wants the Jewish people to serve God by choice. That means that
they must be free to choose whether to serve God or not. Therefore
surveillance, sanctions, and observance due to pressure exerted by the
community are not encouraged by Jewish law. A holy people will carry
out the wish of God without sanctions and out of free will. "Judaism,... wants Jews to perform the commandments without coercion
and without the presence of sanctions because the goal of the
commandments is human perfection: the perfect man acts out of inner
conviction and not because of threats from without. It is in the light of the goal of human perfection that one can
fathom more easily why Judaism places such importance on the privacy on
one's religious opinions and performance. Anything comparable to a
police state destroys or lessens the possibility of cultivating the
voluntary aspect of one's religiosity" (Rackmann 1982, 32) Religious observance is most meritorious when given freely. Privacy
increases the likelihood of a holy people emerging, based upon the
willing observance of God's commandments. The need for privacy is thus
based upon the moral imperative to produce a righteous nation. "Why is it that a person so desperately needs privacy? Surely it is
to develop his own unique combinations of talents and abilities with
which the Creator endowed him. Only by utilizing his inner abilities
and talents can any individual attain fulfilment of his own self and
approach an understanding of the personal relationship which exists
between himself and G-d. This coming close to the G-dhead is what we
term Kedusha - holiness, and it cannot be attained in a setting wherein
the individual does not have the privacy of "inner space" ". (Cohen
1981, 57) Judaism sees that there are two ways to achieve public morality.
There is morality born of inspiration, and there is morality born of
fear. Judaism values morality born of inspiration. Only with the space
given by privacy can one come closer to God. Observance and prayer are
both tools in this process, and they are enhanced by privacy. The next
chapter will apply the moral concepts discussed here to the problems
raised by data surveillance. Privacy, Databases, and Jewish lawChapter FourThe fourth chapter suggests the use of the Jewish view of privacy as
a basis for guidelines when working with databases containing
information on individuals. It compares the viewpoint on privacy as
expressed in Jewish law with the tendency for information technology to
impinge upon privacy. Jewish law can be used to judge situations where
information on individuals is stored, manipulated, and sold. By
proposing moral guidelines, this work may aid in the process of
planning and executing information storage and retrieval policies. In this chapter we briefly cover the main themes of the three
previous chapters, and bring these main themes together. From the
concepts outlined in chapter three this paper will attempt to provide a
set of questions which may prove useful when dealing with information
which can be connected to individuals. What have we learnt? In the first chapter we proposed that there is a moral basis to
privacy since we need privacy in order for humans to carry out certain
functions which make them human. Humans need to be autonomous, to learn
to foster their individual moral growth, to have the possibility to be
creative and learn, to develop a social life, and to feel able to
engage in political activity. These functions were seen as necessary
both for the individual and for the society which the individual is a
member of. In the Western liberal approach to privacy proposed in these
pages, the purpose of privacy is to foster the functioning of the
individual and society. In the second chapter we attempted to show that the information
gathered in commercial databases, and the tools which have been
produced in order to analyse these database (in order to enhance profit
and control over consumers) inevitably created privacy infringement. We
proposed that both the sources of the technology and the goals
currently in place for the technology will lead to privacy infringement
and increasing control over the individual. Data surveillance creates a
situation, wherein any public action of any individual, must be weighed
and measured by the individual. She must consider her action, in order
to ensure that the action will not cause her to be judged adversely by
the systems set up in order to analyse the data produced by her
actions. Such a situation can be seen as much closer to one based upon
fear than one based upon trust. In the third chapter we looked at the Jewish religious law dealing
with privacy and showed the basic underlying concepts which bring forth
the laws. We saw that there are boundaries aiming to limit both the
intrusion upon the privacy of individuals in order to retrieve
information, and the dissemination of information dealing with
individuals. The sanctity of human information privacy was seen as
enhancing the moral and spiritual development of the individual and the
society. In the Jewish approach shown here, privacy was perceived as
fostering the holiness of the individual and the society. A set of
rules of behaviour is proposed by Judaism for religious Jews, and one
of the methods suggested as necessary in order to foster the observance
of these rules is the consideration paid to privacy for the
individual. What is the basis of the argument between technologists and
moralists? There is a tension between the point of view which wants to do
whatever is possible, and the point of view which asks whether an
action is moral. Technologists want, and have been trained and
socialised, to do whatever is possible. The possibility of action is
seen as the justification for the action. Ethical constraints on the
actions of the technologists are not built into the system, and ethical
judgment is not one of the subjects of greatest importance when
choosing a technologist. Ethical codes, no matter how lofty their aims,
and how refined their language, have failed. They are no match for
commercial pressures. We already live in a society in which database
systems which infringe privacy are in use. Technologists will propose technology which will inevitably infringe
upon privacy, when the use of this technology is likely to increase
profits, to increase efficiency, or simply because the technology is
feasible. Little or no stress is laid upon the search for technologies
which would be able to provide the same likelihood of profit or
efficiency increase but would not infringe on privacy. The search for
technologies which would enhance privacy is rarely seen as commercially
attractive. Moral arguments are seen as lacking in weight, substance,
or necessity. Systems which infringe privacy are in use, despite laws,
codes, and outcry. Systems which could carry out some of the same
commercial tasks without infringing privacy are available, but are
usually rejected in favour of technology which eases privacy
infringement. This does not have to be the case, it seems that only
very determined opposition will produce alternatives. Only after a
threatened boycott of the system by all doctors was the NHS national
database allowed even a reduced level of encryption protection for
personal files. The first proposals allowed anyone above a certain
managerial level access to all personal medical files, anywhere in the
country. The currently proposed system, which enhances the privacy of
personal files by encrypting them, is to use an encryption method which
has been proven to be breakable by academic research groups, and which
is thus likely to be vulnerable to unhindered government access,
without the need to gain permission from the individual or her
doctor. Why should we care? Every action we take has consequences. The society we will live in
is produced by the actions of all members of society in the present.
Some members have more influence than others, and everyone must be
aware that their decisions create our future. Every person has her own path, upon which she seeks God. In order
for her to explore her own path, she needs to feel reasonably sure that
so long as she does not harm other human beings, she is free to find
her own spiritual way. When a person must assess all her actions in
case they might be seen as part of a pattern of actions which lead to
censure or punishment, then that person is not free to seek God in her
own way. If a person is not free to seek God in her own way, then society is
telling that person that there is only one way to be a good person.
Since the type of person being chosen by society is actually being
chosen by government and commercial functionaries, society is saying
that people with money or power are more justified in choosing the type
of person she is to be than she herself, the minister of her religion,
or even her parents. Society is saying that money and power are the
measure of morality. The only type of person who will be able to flourish in such a world is the type of person who will bring most profit to commercial interests and cause least cost to governments. This type of person is not necessarily the type of person who will be most moral or the best neighbour. The type of person whose profile is not congruent with the profile most favoured by commercial and government interests is not necessarily an evil person or a bad neighbour. She might be more interested in making music, or serving others, than climbing tax brackets.
By creating a world where certain people are allowed to decide what
kind of people are good, and the people deciding are able to watch
everyone all the time, we are taking free will away from people. We are
saying that only some of the people are worthy of making moral
decisions, and most of the people are not. Designing, maintaining, or using a data surveillance system as part
of one's daily work can be seen as contributing to a society which
values the use of fear and control, and disregards the value or
possibility of individual morality, individual moral development, and
individual responsibility. If we could guarantee that there was only one truth, and that there is only one way to achieve a virtuous world, then there might be some justification in building a world where only one way of being were possible. Since the one true way to a virtuous society is not known, how dare we create a situation where individuals confessing varieties of belief will inevitably be oppressed?
The role of the information and library
professional I would claim that information privacy is a right, of great moral
significance, and librarians, as custodians of information, must pay
attention to this right. As librarians, we may believe that our role in
protecting individual privacy is of no consequence. We may say to
ourselves that our managers are paid to decide such things. However,
managers are constrained by financial and personnel management
considerations. When librarians make strong views on privacy clear to
managers, managers must take these views into account, if only to cut
down on the number of job advertisements placed, and job interviews
suffered, because of employees who are fired or resign. Garoogian, a
librarian associated with public libraries, believes in a strong moral
case for individual privacy, whereby the confidentiality of records is
guarded, because all aspects of information management are a
librarian's business. The data spoken of here are circulation records,
which directly reveal the interests of the individual concerned: "A person's independence, dignity, and integrity are violated when
one's right to privacy is infringed upon... Librarians are in a very
powerful position since they have direct access to the private reading
and subject interests of their users. They have been entrusted with
this power. It is, therefore, their moral obligation to keep this
information confidential." (Garoogian 1991, 219) Librarians, as custodians of information, must consider all the
implications of their actions. Whether the database covers borrowed
books or credit ratings, all access to the database is an infringement
on the privacy of the individual, since the database is the record of
the actions of the individual in the world, and the actions of an
individual reveal their very being. The librarian must ensure that the
data is only used for the purpose the individual has sanctioned. What questions should we ask? When deciding upon the structure and use of databases containing
information which can identify individuals, there are some thoughts
which should be part of our deliberations: a) Do we need to have information on individuals in the first
place? Since intrusion, and the very gathering of information, can be see
as morally questionable, we might ask whether there is any need to have
information on the individual in order for the task under consideration
to be carried out. Could an equally valid database structure be used,
which does not use personal identifiers? (The teaching of database
structures has not emphasized individual privacy, and this is one
reason that very few database systems which enable privacy exist.) b) Do we need, in any way, to share the information we've
received? Sharing information with others is not always justified, so is there
proof that keeping the information private will cause damage to others?
Must the lack of profit from not selling the information be seen as a
loss, or can it be seen as a investment in the community? Will the
intrusion upon the privacy of the individual, produced by sharing the
information, prevent her from living her life the way she has chosen?
(The balance of power between the individual being asked for the
information, and the organisation requesting the information is not
even. Frequently, the individual will be refused service if she refuses
to provide all requested information, no matter how irrelevant to the
situation the request for information is.) c) Is the information we have accurate? Changing inaccurate information on multiple credit and marketing
databases, all of which are used to produce profiles of individuals, is
time consuming, difficult, and costly. Information must be proved to be
incorrect in order for database providers even to think about changing
it, and how many of us keep records accurate and reliable enough to
disprove those held by financial service providers? d) Can we, as information handlers, cope with the moral charge we
are being given? Are the personnel in contact with the database, who are being asked
to guard the privacy of other individuals, being asked to be more moral
and upright than a person can be, when faced with the temptation of
power over the information on another individual? Are the management
structures designed to enable or discourage moral choices? e) More general questions we might ask ourselves are: What kind of society will our actions lead to? Do we want to depend
on surveillance or trust? Do we want to encourage a sense of belonging
or a sense of fear? In order to answer these questions, more work needs to be carried
out on the extent and efficacy of privacy invasion through database
surveillance, and the effects of such surveillance on personal activity
and decisionmaking. In addition, the effects of the perception of
surveillance on the moral structure of society need to be examined in
greater depth. Conclusion Both from the Western liberal standpoint, and from the Jewish
religious point of view, privacy occupies a very important position in
ensuring the ability of the individual to function and prosper in
society. Present and future trends in database technology seem to imply
that cheaper and more pervasive surveillance is on the way. Do we want
to produce a society where privacy is valued, and where people act in a
moral fashion because they feel that they want to be a part of society,
or do we want a society where privacy is disregarded, where people put
their efforts into avoiding apprehension, and feel no connection to
society? In order to produce a virtuous society, one wherein the
individual can pursue her physical, mental, and spiritual goals to the
benefit of all, our society needs to value privacy, and instil the
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