This years’ Robbins Collection Lecture in Jewish Law, Thought, and Identity, “Jewish Law for the Digital Age,” marked 12 years of collaboration between the Robbins Collection and the Helen Diller Institute for Jewish Law and Israel Studies (formerly the Berkeley Institute for Jewish Law and Israel Studies) and the 10 year anniversary of the Institute.
One doesn’t have to look very hard to find examples of how our privacy has been steadily eroding over the past few decades. Our phones and their applications are tracking our locations, movements, entertainment habits, and more, all to be collected and sold in commercial data sets. Professor Kenneth Bamberger, the Rosalind and Arthur Gilbert Foundation Professor of Law at Berkeley Law , and Professor Ariel Evan Mayse, Assistant Professor of Religious Studies at Stanford University discussed how Jewish law can provide a new way to talk and think about privacy rights in the 21st century. “The Jewish legal tradition predates liberal traditions and certain concepts of the individual,” observed Professor Bamberger, “allowing us to think about privacy as a community endeavor.”
Drawing upon millennia of Jewish legal tradition, Professors Bamberger and Mayse aim to make Jewish law a part of today’s legal resources. They identified five pillars of Jewish privacy law that could make significant contributions to modern privacy discussions: Jewish law has historically viewed privacy as an element of good society, protected through the idea of reciprocal duties as a community, rather than an individual right; therefore violating privacy law can be considered harmful even if no specific individual or person’s rights were broken; Jewish law rejects technological determinism and an individual cannot waive their own personal privacy (like many modern consumers currently do when we consent to online agreements); Finally, Jewish law recognizes that privacy and anonymity can also constitute a tool of oppression, and some information, when kept private, can cause harm. Rules on privacy are found diverse historical Jewish legal sources, including writings by Maimonides and Nachmanides, and the Sefer Kinyan (Book of Acquisitions) from the Mishneh Torah, which contains Hilchot Shcheinim (the laws of living as neighbors) where the rules of hezek reiyah (virtual trespass) are found. Professor Mayse suggested that,“The goal is to think with these sources of Jewish law, allowing this thick tradition to enrich our modern thinking as well as challenge our mindsets. The fact that much of Jewish law predates our current situation of sweeping systematic surveillance affords us a window into a different matrix of values and traditions.”
This very informative presentation stimulated a lively discussion that underscored the relevance of Jewish legal sources in the current discussion on the complex issue of privacy in our technological age. Professor Bamberger’s and Mayse’s compelling lecture aptly reminded us of Lloyd M. Robbins’ wishes to create a place where legal scholars could access past legal sources in their attempts to solve modern legal challenges.