Late last week, after a very public back and forth between the Daily Wire's CEO Jeremy Boreing and Steven Crowder, the latter decided to release a conversation that he had secretly recorded between himself and his now former friend. This came after he initially leaking a confidential term sheet.
It backfired. Badly.
The firebrand political commentator was then promptly cudgeled by people from all sides and condemned for secretly recording the conversation, specifically with someone who considered him a friend. It was also seen as a real business faux pas to leak a document routinely regarded as confidential by all involved in business, even if no actual NDA or such contracts had been signed specifying it was.
The Lubavitcher Rebbe once exclaimed, "politics are the depth of evil." Now, I am not interested in the particulars of this controversy; still, it raises a fascinating question: In a world increasingly dependent on technology, where leaked conversations, leaked DMs, leaked pictures, leaked anything have routinely become a part of the news cycle, what does Torah have to say about it?
Are you allowed to record a conversation with the intent of releasing it? Are you allowed to record it without such intent? Are you allowed to record a private conversation with a friend? Are you allowed to record to protect yourself or your interests? Are you allowed to record a conversation without announcing it? What about private emails? What about DMs?
The list goes on and on.
Let us look at how the Torah deals with this by first going directly to the source itself.
Three Prohibitions of Biblical Proportion
Much like everything else in Judaism, speech is rigorously legislated and structured into what you can and cannot say. Aside from the general prohibitions and commandments, of which there are 31 according to the Chafetz Chaim, who wrote the seminal work on the subject, there are also etiquette guidelines that are strongly suggested but, if violated, are not considered transgressing a prohibition.
There are three, and some say five, different interdictions to take into account:
Lashon HaRa (Lit. "Evil Tongue") Rechilut (Gossiping) Hezek Re'iyah (Damage through Viewing)
Some include the concept of "Harei Hu B’Bal Ye’amer" (a conversation cannot be shared until permission is granted) under the prohibition of Rechilut, and others include Hezek Shemiah (Damage through Eavesdropping) under Hezek Re'iyah.
Both Rechilut and Lashon Hara are prohibited by the same verse :
לֹֽא־תֵלֵ֤ךְ רָכִיל֙ בְּעַמֶּ֔יךָ לֹ֥א תַֽעֲמֹ֖ד עַל־דַּ֣ם רֵעֶ֑ךָ אֲנִ֖י יְהוָֹֽה
You shall not go around as a gossipmonger amidst your people. You shall not stand by [the shedding of] your fellow's blood. I am the Lord. (Leviticus 19:16)
The Rambam in Hilchot De'ot 7:5 defines the latter as:
From this, it would be permitted to share a conversation, taped or otherwise, as long as it will not embarrass or cause damage to the person. And yet…
The very first verse in the book of Vayikra (Leviticus) opens with:
וַיִּקְרָ֖א אֶל־משֶׁ֑ה וַיְדַבֵּ֤ר יְהֹוָה֙ אֵלָ֔יו מֵאֹ֥הֶל מוֹעֵ֖ד לֵאמֹֽר
And He called to Moses, and the Lord spoke to him from the Tent of Meeting, saying,
On this, the Talmud (Yoma 4b) comments:
We see from the word 'לֵאמֹֽר' that the Talmud learns that if not for that word, Moshe would not have been able to repeat what G-d had shared with him. Therefore, the Talmud explicitly says that a conversation you've had with someone cannot be shared without their express consent. However, it is not considered lashon hara but rather a prohibition in itself.
One should not take it lightly, either. It is written in the Midrash Bamidbar Rabbah (20:21) that:
"In the merit of four things, the Jews were redeemed from Egypt—they did not change their names; they did not change their language; they did not disclose each other's secrets; and they did not break barriers of morality. "
There is a disagreement about whether the concept of Harei is a prohibition. In his Laws of Lashon Hara (2:13), the Chafetz Chaim explains that the ban applies even to conversations where no private information is disclosed. With this, he disagrees with the Rambam, who did not list the concept of Harei in Hilchot De'ot, most likely because he did not consider it an actual prohibition of the Torah. This is the opinion of the Meiri, and he explicitly states it's a general guideline for behavior and not halacha.
In short, Lashon Hara applies only to information that might cause distress or damage. Still, decency requires one not to relate even information that would cause neither unless one is directly permitted to. The Chafetz Chaim says that even if it's an actual prohibition, it would only apply to things that were told in private and in confidence, indicating that the one sharing the information does not wish for it to circulate.
On the other hand, Lashon Hara applies in situations even where the information was circulated publicly; the prohibition of Harei would only apply when this information was disseminated privately.
Yet Lashon Hara is not the only prohibition under which taping conversations or leaking DMs could fall under. This is where Rechilut comes into play. The Rambam in Hilchot De'ot seems to define Rechilut as the sharing of private information, though not everyone agrees that the prohibition is quite as expensive (Chafetz Chaim Hilchot Lashon Hara 1:1)
The Meiri comments on Sanhedrin 31a that a man is obliged not to reveal and bring information from one to another without permission, this being Rechilut.
According to Rashi on Arachin 15b, he comments that "the tongue of the gossiper, who is the third party, comes between a person and his fellow to reveal secrets to him.' According to him, Rechilut is specifically about a person who reveals any private information. Yet, in his commentary on Vayikra 19:16, he restricts Rechilut to someone going around in order to disclose negative information.
Overall, there is a disagreement among the Rishonim as to whether Rechilus means a) Information that will create negative repercussions or b) any secrets whether there will be repercussions or not.
Nevertheless, everyone agrees that while it might or might not be a prohibition, it is absolutely improper to reveal someone's private information, even for the sake of self-defense, as we see in the Midrash of Bamidbar Rabbah (Maasai 23) where King David's general Yoav is chided for revealing the private content of a letter that the King sent him, and it states he was punished as a result.
Private Information as a Window to the Soul
There is a very known prohibition that someone cannot build a window in their house that will allow them to look into their neighbor's houses or yards (Bava Basra 59b-60a). This is the prohibition of Hezek Re'iyah. This originates from Bilaam's praise of the Jewish people in the desert, where he mentioned that none of the tents' openings of the Jewish people faced each other's in the name of modesty.
The Ramban (to Bava Basra 59a) states, without equivocation, that even with your neighbor's permission, you are required to seal windows that give on your neighbors' yards or allow you to look into their house. The Rambam (Hilchot Shecheinim 6:7, 11:4) disagrees in a situation where a neighbor initially consented, even if he changed his mind afterward. This is how the Shulchan Aruch ultimately rules, but the Rama adds that even so, one must ensure that he will not peer into his neighbor's property.
The Shulchan Aruch HaRav (Hilchot Nizkei Mamon, 11) writes that there's a complete prohibition as far as looking into someone else's property:
Later (Hilchot Nizkei Mamon, 13), he writes that this applies to someone walking in the public domain and that he should avoid looking into other people's property. It is not forbidden to glance, as it would be almost impossible to walk otherwise, but it is not permitted to stop and gaze into it:
The question in our case is whether this extends to any invasion of privacy?
The Edict of Rabbeinu Gershom
Rabbeinu Gershom (960-1040 CE) enacted a Rabbinical Ban (Takanah) on reading other people's correspondence. He declared that one cannot look upon that which another wrote to someone else, but once the letter has been discarded, you can presume it is no longer considered confidential and, as such, can now be read by a third party. Unlike his edict on polygamy, this was also accepted as binding by the Sefaradi community. It was taken on by the entire Jewish people and, therefore, is forever binding upon us.
Three different reasons have been given:
Reading someone else's private conversation will lead to violating Rechilut. Reading someone's private letter is equivalent to stealing someone's personal property. Reading it violates the prohibition of 'love your neighbor like yourself.'
Everyone agrees that it is forbidden; the only question is on what basis. Some hold it is prohibited under two or even three of those grounds.
Even in the situation where the letter belonged to a non-Jew, while he would not be included under the third category, it would still be forbidden as a matter of Chillul Hashem, according to HaRav Yosef Sholom Eliashiv zt" l.
There are two opinions on whether this edict would extend to wiretapping a conversation:
It definitely is included It definitely is not included.
The first argument is that there is no substantial difference between intercepting a letter or eavesdropping a confidential conversation. In contrast, the other opinion states that if a special edict was explicitly enacted for letters, there is no reason to believe that the scope of the ruling would include anything else that was not expressly included. While the latter is the minority opinion, it is evident that both parties would agree that private electronic correspondence, such as emails or DMs, would fall under the purview of the edict.
The majority, however, believe that the Edict of Rabbeinu Gershom extends to any violation of expected privacy.
Even in the previously mentioned situation where the letter was thrown out, things are more complex. This only refers to an open place where one can tell that the person who threw it does not mind that someone else reads it. If it was in a closed bin, for example, or on private property, this would not apply. If someone rips out a letter, for example, he demonstrates that he does not want anyone to read it, even if it's in the public domain.
Seemingly, most opinions would agree that
Voice mail Voice notes Listening to someone's private conversation (eg, speaking quietly, or through a door) Listening in on a phone call as a third party without consent Taping a conversation Using a scanner to listen in on conversations
would also all be considered a violation of the edict of Rabbeinu Gershom.
Taka, what?
A question could be asked:
If it is merely an edict from a thousand years ago, why should it be accepted with such severity or taken so seriously? After all, it was not written as such in the Torah or as an explicit halacha in the Oral Torah. Why are we still bound by something today that was formulated at a time when there were no cell phones, scanners, or even pagers?
As part of the mechanism of Jewish law, Rabbis are given the authority to institute either a gezeirah or a takanah. A gezeirah is a fence around the Torah to prevent violations of commandments. A takanah, however, is a practice that is not necessarily based on a commandment but is considered necessary in order to uphold Torah. Some of them can be temporary, while others are considered permanent. Five different takanot are ascribed to Moshe himself. Many others were instituted during the First and Second Temples, the latter having molded the Judaism we live today after its destruction. May the Third be rebuilt soon, amen v'amen.
Therefore, once a prohibition (also known as cherem) has been 1) issued by an authority or body who has the status to do so and 2) was accepted by the entire Jewish people, it becomes as severe a law as anything else in Torah.
According to the Rashba, someone who transgresses a cherem is worthy of death. The Midrash Tanchuma says it is the equivalent of violating the entire Torah. The Shulchan Aruch says that the person is disqualified as a witness.
Respect for privacy is treated severely in Judaic Ethics, regardless of the extent authorities rule on the technical details of what's permitted and what's forbidden.
For example, the Chafetz Chaim, quoting the Tzaavat Rabbi Eliezer HaGadol, writes that simply sitting silently in a conversion where others are gossiping or saying lashon hara, you are violating the prohibition, even if you do not engage in it yourself or even believe what they are saying. This would extend to social media, just as it covers magazines, books, and the rest of the printed word.
The Pele Yoetz declares that someone who searches for another's secrets by listening behind a wall, deceiving them, or opening letters is full of disgrace, guilt, and sin. It leads to hatred, fighting, and strife. Anyone who wishes to protect his soul should distance himself from all this, "for anyone who does this is abominable to G-d."
The Talmud, in Sanhedrin 31a, tells how Rabbi Ami kicked out a student from the academy because he had disclosed the details of a conversation that had taken place 22 years earlier, saying that he "reveals secrets":
This is not to say that one should not take measures to protect himself. The Gemara tells us how that Yaakov, when he desired to speak with his wives in private, would hold his discussion in the fields where his flocks grazed instead of his father-in-law's home to protect himself from eavesdropping.
Conclusion
A conversation between two parties, under Torah, is always considered confidential, and neither party has a right to reveal any of its details to others until he is explicitly told by the other participant that he is allowed to.
Though some opinions allow it if the information will neither 1) cause damage, 2) is not something a person would wish to keep a secret, and 3) does not transgress any of the laws of Lashon HaRa and Rechilus, many other opinions forbid it, and therefore it is better to avoid discussing it.
Some explain that if the conversation was not meant to remain confidential, for example, if it took place in public or with more than three people present, there is no restriction of telling it over as long as it does not involve Lashon Hara or Rechilus.
The interdiction to violate one's privacy applies not only to private conversations but to letters, emails, DMs, voice notes, voice mail, etc.
Recording a conversation without the other party's consent is problematic at best, though it is not black or white as far as its permissibility goes.
In certain situations, it might be permitted, primarily to protect personal or business interests, to make sure someone holds their side of a deal, or use it as evidence in front of Beit Din or, in some cases, a secular trial.
It would be entirely forbidden, however, to record conversations of a private nature that have nothing to do with the situations listed above, and it would be especially prohibited to use these recordings to slander, benefit from them, and turn public opinion against them. The prohibition would be further compounded if you lived in a state where it is illegal to tape someone without their consent.
Nonetheless, even with conversations one is allowed to record, one would not be permitted to release them publicly. Anyone who records a discussion and releases it to the public transgresses several Biblical Prohibitions, how much more if when it was premeditated.
In any such situation, it's always better to consult your local Orthodox Rabbinical Authority on how to proceed.
Just don’t wiretap your friends. It’s pretty rude.
Might Rambam's statements about hidden witnesses (Hilchot Toen vNitan Chapter 6 halachot 7-8) have any bearing, in that, like a tape recorder, one party is placing them there to "record" an ostensibly private conversation.