Confidentiality and the Right to Know


From time to time, I get together with a few law school profs from a different school to help them with their research on intellectual property. They are all Jewish, but have different comfort levels with untranslated rabbinic texts. Having a bit more experience with responsa literature, I am able to nudge them past some of the obstacles in the text.

Working our way through an important teshuva of the Bais Yitzchok (taking issue with the Shoel U-Meishiv’s contention that there is a self-evident proprietary right to intellectual property), I was pleasantly surprised by the absolute delight expressed by one of the participants to a reference to what I had seen as a peripheral point. The Bais Yitzchok mentions Bal Tomar in passing – a reference to Yoma 4B, which seems to establish a rule of assumed confidentiality of all conversation between individuals – unless indicated otherwise. In other words, no one needs to caution you not to repeat a conversation to anyone else. Unless he/she tells you otherwise, all conversation is presumed to be private and confidential, and it is forbidden to relate it to others. The Gemara is cited by Magen Avrohom, Orach Chayim 156:2 (at about the midpoint; he sees an exception if the matter is related not to an individual but to a group of three or more); the Smag considers it a violation of Torah (in contradistinction to rabbinic) law.

My colleague was so delighted because it moved back privacy law earlier than he had previously considered.

In any event, the ethic of this Gemara differs sharply with what we colloquially call “the right to know.” Such a right, if validated at all by halacha, is much more limited by halacha than the way we know it in the US. An anecdote related by a friend impressed me as showing the wisdom of a genuine talmid chacham, in balancing the privacy demanded by halacha with a genuine need to know.

A member of a shul had been somewhat unscrupulous or unreliable in his borrowing behavior. He had borrowed money from several congregants, and not paid off the loans. None of the lenders were aware of his past behavior, and simply trusted him. One of them thought to caution the rav of the shul, and asked him to make this behavior public, so that others would not suffer a loss as well. The rav verified the facts, but was intuitively uncomfortable with making a public announcement.

He brought the dilemma to a more senior talmid chacham, who would not permit warning the rest of the shul. He pointed to the other members of the borrower’s family, whose names and interest would be damaged in the process. He said that the rav had no right to protect other members of the shul at their expense.

It didn’t end at that. He came up with an insightful modus vivendi. Rather than disclose the identity of the borrower, he told the rav to simply announce that it would be a good idea if anyone who wished to lend money to anyone else in the shul would first check with him, the rav, as to whether there might be any history of repayment problems.

Thus he turned a legitimate right to know from a sledge hammer to a finely tuned instrument. I am certainly not going to argue that the Torah community addresses all problems with this kind of finesse, but it is nice to learn of the examples that showcase getting it right.

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1 Response

  1. DMZ says:

    The underlying issue is that problems are not always solved so insightfully. Ugly example, but true: the NCSY incident a few years ago. If that hadn’t gone public, the person might not have been caught as soon. (He’s actually up for parole now, but I’ve not heard how that’s going.)

    What makes this incident such a great example is that the people DID go through the appropriate channels, and the rabbinical authorities in charge covered it up. It’s time to realize that just because someone has smicha doesn’t always mean they have good judgement. Rabbinical leaders, well respected ones at that, _did_ drop the ball in a horrible way. _We cannot only rely on rabbinical intervention for our problems in this day and age._ It should be the first step, but it cannot always be the last step.

    To me, the problem has always been sort of analogous to the issues involved with security disclosures in computer programs. Going public immediately gets the problem fixed, but then again, you’ve got all the break-ins by people who crack in before the patches are issued, and those are on your head to some extent. On the other hand, just telling the company and letting them sort it out sometimes leads to nothing getting fixed at all.

    I think a similar solution would work for the Jewish issue of non-disclosure as well – provide the details of the problem to someone (or some people) who can fix it, and give them a reasonable time frame (depending on the problem) to implement the fix in. If they don’t make any progress, escalate the issue another level, and then give them a deadline as well. At some point, if no one actually does anything, you can go to the papers, probably guilt-free, because you tried doing the “right thing”, and no one else was willing to do it, too.