Pre-Modern Insights for Post-Modern Privacy: Jewish Law Lessons for the Big Data Age

64 Pages Posted: 5 Dec 2020 Last revised: 25 Jan 2021

See all articles by Kenneth A. Bamberger

Kenneth A. Bamberger

University of California, Berkeley - School of Law

Ariel Evan Mayse

Stanford University - School of Humanities & Sciences

Date Written: November 16, 2020

Abstract

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

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

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

Keywords: Privacy, Big Data, Technology, Jewish Law, Human Rights, Social Obligations

JEL Classification: K1, K11, K13, K20, K23, I31

Suggested Citation

Bamberger, Kenneth A. and Mayse, Ariel, Pre-Modern Insights for Post-Modern Privacy: Jewish Law Lessons for the Big Data Age (November 16, 2020). Available at SSRN: https://ssrn.com/abstract=3731770 or http://dx.doi.org/10.2139/ssrn.3731770

Kenneth A. Bamberger (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall NA446
Berkeley, CA 94720-7200
United States
(510) 643-6218 (Phone)

HOME PAGE: http://www.law.berkeley.edu/faculty/profiles/facultyProfile.php?facID=5701

Ariel Mayse

Stanford University - School of Humanities & Sciences ( email )

518 Memorial Way Building 1
Stanford, CA 94305
United States

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