24 November 2020


'Privacy in Society: Jewish Law Insights for the Age of Big Data' by Kenneth A. Bamberger and Ariel Evan Mayse comments 

This Article makes the counterintuitive argument that Jewish law’s millennia-old approach to regulating visual and aural surveillance, the protection of communications, and information collection, sharing, and use, offers important frameworks for protecting privacy in an age of big data and pervasive surveillance. Judaism views privacy as a societal obligation, and employs categorical behavioral and architectural mandates that bind all of society’s members. It limits waiver of these rules, and rejects both technological capacity and the related notion of “expectations” as determinants of privacy’s content. It assumes the absence of anonymity, and does not depend on the confidentiality or secrecy of information or behavior witnessed or overheard; whether or not knowledge is later used or shared; or whether the privacy subject can show concrete personal harm. And when certain types of sensitive information is publicly known, or can’t help but be visible, Jewish law still provides rules against its use. 

The modern approach to privacy has failed. Notions of individual “rights to be left alone” and “informational self-determination,” offer little defense against rampant data collection and aggregation. The substantive promise of a “fundamental human right” of privacy has largely been reduced to illusory procedural safeguards of “notice” and “consent”—manipulable protections by which individuals “agree” to privacy terms with little understanding of the terms of the bargain, or power to negotiate or opt out. 

Jewish law offers a language that can enrich ongoing policy debates. It suggests a move from individual control over information as the mechanism for shaping privacy’s meaning and its enforcement, to a regime of substantive obligations on all societal members—personal and organizational—to protect privacy. It recognizes the interconnected nature of human interests, and comprehends the totality of the harm pervasive surveillance wreaks on both individuals and social relations. It offers a conceptual basis for extending traditional privacy protections to online spaces and new data uses. And it provides a language of dignity that recognizes unequal bargaining power; rejects the aggregation and use of information to create narratives and produce judgments that confine personal growth and free choice; and demands equal protection for all humans.