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 Law


This 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 Law

Chapter One

Why 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 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 Law

Chapter Two

This 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:

" 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 law

Chapter Three

In 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 law

Chapter Four

The 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.


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 importance of privacy, especially in the souls of those who store and manipulate information.

Privacy, Databases, and Jewish Law


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