My Jewish high school recently announced plans to spy on student's computer usage by requiring us to install software letting them remotely watch and block computer use. What does Jewish law have to say about this violation of our privacy?
This question challenges us on a variety of levels. First is whether this is an American civil problem or a Jewish legal concern or both. Secondly, if we choose to approach this as a halahic concern, how do we interpret texts that simply don’t have a grasp of the technology being used and the stresses and problems that arise from computer usage? Schools have a sacred obligation to protect students. That being said, I have serious concerns about a school installing software to remotely watch and block computer use, no matter whose computer it is.
Both the rabbinic and medieval Jewish scholars have something to teach us about the issue of privacy and personal rights. Rashi, the great medieval Jewish scholar, wrote in his commentary to the Talmud that the Israelites dwelling in the land of Moab did not intermingle with one another. Rather, "the entrance of each family tent faced exactly so that one person could not peer in to the other’s tent." (Baba Batra, 60a) Clearly the message here is that a person should not reach visually into the space of another person. A computer which is being used by a student belongs to the student and the privacy of that student should be respected.
Maimonides, in his Mishnah Torah, also teaches about the value of privacy. He writes that, “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 (Laws of Acquisition, Chapter 7). Here, Maimonides again speaks to this idea of visually reaching in to another’s personal space.
I understand why the school is making such a claim and I empathize. I have children and I want to protect them from a world that at times is destructive and harmful. But, I also recognize that the role of a parent is to teach values. For me, the value of privacy is so important that it trumps the other concerns I may have about computer usage. While I recognize that teens are hurt every day through technology in general and computers in particular, I must agree with you that a blanket software program that allows for remote access and contains the ability to block computer use is a violation of the halahic principle of privacy.
In Judaism, we are forbidden to read another person’s private mail without her permission. The ban was formalized for Ashkenazic Jews approximately one thousand years ago in a decree issued by Rabbeinu Gershom, “the Light of the Exile,” who also is famous for having issued the decree that outlawed polygamy among Ashkenazim. This ban is listed among others of his decrees in note 123 of the Be’er HaGolah footnotes to Shulchan Arukh, Yoreh Deah 334:28. That notation adds that the private correspondence may be read if the recipient or writer threw it away, thus abandoning willful ownership or possession. Among the reasons posited for the ban, some believe that reading another’s private correspondence constitutes stealing something of value from them. Others perceive that it implicates the laws of r’khilut and loshon horo (tale-bearing and gossip). Having been issued a thousand years ago, when daily commercial relations with non-Jews were more suspect, it could be surmised at first glance that Rabbeinu Gershom’s ban might not have been intended to govern protecting the confidentiality of private correspondence of non-Jews, but normative Torah interpretation of the ban recognizes that a Jew likewise is forbidden to breach the privacy of non-Jews’ correspondence.
Under a second critical concept – dina d’malkhuta dina (“the law of the land is the law”) – Jews are obligated to honor the secular laws of the government in the countries where we respectively live, and to conform our behavior to those laws where the given laws are not uniquely conceived as anti-Jewish in purpose. Many American states have laws protecting privacy. In California, for example, the state supreme court held in its landmark decision, Hill v. National Collegiate Athletic Ass'n, 7 Cal. 4th 1, 26 Cal. Rptr. 2d 834 (1994), that a person’s privacy is protected from invasion when she has a reasonable expectation of privacy, where a legally protected privacy interest is implicated, and where there has been a serious invasion, although the defendant can overcome the allegation if he can show that his invasion was impelled by a legitimate countervailing interest.
In volume two of his published series on Contemporary Halakhic Problems, Rabbi J. David Bleich cites a published opinion by Rabbi David Halevi, former Sephardic Chief Rabbi of Tel Aviv, that the decree of Rabbeinu Gershom does not apply in the event that it would prevent someone from performing a mitzvah. Thus, perhaps a spiritual mentor or parent could monitor a student’s or child’s communications, in certain outlier situations, to assure the young person’s proper moral or spiritual development. In the case of a Jewish High School monitoring its students’ computer use through the application of software that enables the school to monitor, it is hard to see any violation of any law – Jewish or secular. The school is giving all users advance warning of its intention to monitor, so the students have no reasonable expectation of privacy, and their very asset to use such computers, knowing they are being monitored, waives the Rabbeinu Gershom concerns regarding reading someone else’s private mail without consent. That is, when the student uses those software-enabled computers, he or she impliedly is consenting to their terms of usage.
Furthermore, the schools are grappling with challenges for achieving their purposes of teaching not only facts and intellectual reasoning skills, but also morals and ethics. They know that the internet is rife with morally challenging sites that violate core Jewish values. Even Facebook, in itself a perfectly fine vehicle, can be abused as a tool for cyber-bullying, and the language that some people use when exchanging Facebook messages is quite vile. In this reality, the school has a legitimate countervailing purpose in seeking to monitor its student uses of its computers. A student who participates in this effort by using such a computer that has been augmented with the school’s monitoring program, consents to its use. This is not an invasion of privacy – not under Jewish law, not under secular law. Rather, it is a reflection of the zeitgeist – the spirit of the times in which we live. See also TBG Insur. Servcs. Corp. v. Super. Ct., 96 Cal. App. 4th 443 (2002).
(BTW -- I happen to teach this stuff as a law school adjunct professor, too.)
My Jewish high school recently announced plans to spy on student's computer usage by requiring us to install software letting them remotely watch and block computer use. What does Jewish law have to say about this violation of our privacy?
This inquiry, as formulated, begs the question of whether the school’s practice is in fact a violation of the students’ privacy. American law would reject that inference. Companies whose employees use company computers have the legal right to monitor their employees’ use of the company property. Schools enjoy analogous rights to monitor the use of their school property. So if the students in this Jewish high school are using school computers, they do not, in fact, have a legitimate expectation that their communications will be private under all circumstances.
One would wish to have heard the school’s explanation of the motivation for its policy. Is the school taking this step to remedy some prior abuse of the student use of the computers? Have students been posting comments about others that violate the Jewish strictures against evil speech (leshon ha-ra?) Has the student use of the computers in the school setting been unrelated to the enterprise of learning to the point of constituting a waste of time consecrated for torah study (bittul torah)? Have students been accessing sights that disseminate indecency? All of these situations would constitute a student abuse of the privilege granted to use the computers, and would merit a closer monitoring of computer use by responsible school authorities.
There are, to be sure, other dimensions of this question. In Judaism, there is a distinction between strict, law-abiding behavior, (shurat ha-din) and behavior that exceeds the minimum legal requirement, in pursuit of an ethical ideal (lifnim mi-shurat ha-din). In my judgment, the school is operating in accordance with shurat ha-din in monitoring student use of school computers. But as a Jewish educational institution, the school would be wise to incorporate additional ethical values into its policy—and indeed, the question does not present all the relevant facts, so perhaps the school is doing so.
Classroom schooling is a subset of the larger enterprise of education. How students interact on the playground, in the cafeteria, and on the various communications channels that are proliferating in our day, are all dimensions of the educational enterprise. A Jewish school would rightly want to guide students to develop into ethically sensitive and respectful adults. It may be necessary, as a measure to correct various abuses, to have the right to monitor computer use. But the school ought to do what it can to respect privacy, whose importance is unquestioned within Judaism. Rabbenu Gershom, the leading Rabbi of Ashkenazic Jewry a millennium ago, issued a ban on reading others’ mail, and that ban is at least partially relevant here, if not as a prohibition against the school’s policy, then certainly as a caution against the school’s potential abuse of its monitoring rights and responsibilities.
I would hope and expect that the school makes clear to the students the guidelines for computer use and that it reassures them that administrators and teachers do not intend to “snoop” indiscriminately.
By analogy,” tweens” and teens often insist on the privacy of their bedrooms, within their parental homes. Parents, strictly speaking, have a right to enter those rooms, despite any signage that the children post. In certain situations, indeed, they have a responsibility to enter those rooms. However, it is a wise parent who guides his or her child to understand the parameters of privacy, and who models a respect for privacy as far as other values permit, instead of casually or routinely ignoring the developing youngster’s need for privacy.
As Rabbis Fischer and Greene have detailed, Jewish law and tradition have plenty to say about privacy. Rabbi Mark Washofsky, in Jewish Living: A Guide to Contemporary Reform Practice, suggests that the ultimate aim of privacy protections as they are found in Torah, rabbinic responsa, and elsewhere, is to uphold basic human dignity, especially by preventing the spread—or even the temptation—of gossip.
Regarding your specific circumstance, I would want more information before offering any judgment. What information does the software enable the school officials to access about each student? Who has access? What does the school intend to do with this information? What problem or need in the school community does this plan intend to address? Your question suggests that students will be required to install the software on their personal computers. Does this requirement apply to any computer students ever use, in school, at home, or elsewhere? (I am no authority in this area, but as an aside, it strikes me that such a broad requirement would be nearly, if not utterly, unenforceable.) Or does it only touch upon computers owned by the school along with portable devices (laptops, tablets, etc.) that students will use during school hours on school premises? School officials ought (both ethically and from a public relations standpoint) to answer these and other questions as they prepare to implement this plan.
I would expect the school to treat students at all times with dignity and respect, both in how they announce and explain their plan to utilize surveillance software, and in how they implement it. However, some degree of monitoring of teenagers’ in-school computer use by their school—given the dangers posed to students in and by the online universe, and given a school’s responsibility to keep students safe and learning during school hours—seems to fall within the realm of justified exceptions to an individual’s right to privacy, from both a secular and a Jewish perspective.
Copyright 2020 all rights reserved. Jewish Values Online
N O T I C E
THE VIEWS EXPRESSED IN ANSWERS PROVIDED HEREIN ARE THOSE OF THE INDIVIDUAL JVO PANEL MEMBERS, AND DO NOT
NECESSARILY REFLECT OR REPRESENT THE VIEWS OF THE ORTHODOX, CONSERVATIVE OR REFORM MOVEMENTS, RESPECTIVELY.
