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The Right to Privacy

Julius Kravetz (Sh'ma, 2/29, March 24, 1972)

Was the New York City Department of Social Services in violation of the Federal Constitution when it decided that it would withhold financial aid if its welfare case workers were refused permission to visit the home of Mrs. Barbara James and her son Maurice, who were clients of the AFDC program (Aid to Families with Dependent Children)?

With Mr. Justice Blackmun speaking for the majority of his colleagues, the United States Supreme Court reversed the ruling of a lower tribunal and held that when dealing with a dependent child a home visit can provide information that can be provided in no other way; that even if such a home visit had some characteristics of the search prohibited by the Fourth Amendment it was not an unreasonable search, when no criminal evidence was being sought, when the visitor was a case worker, when the visit was to be made during regular working hours and was not an "Operation Bad-check"; and when forcible entry and snooping were proscribed.

Judaism's fourth amendment rights: what does the Fourth Amendment say?

"The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue except upon probable cause supported by an oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

Does Jewish tradition offer us instruction in this area? Privacy is a value to be zealously guarded but is it to be guarded against all encroachments? Aren't there social interests that outweigh the concern for the privacy of the individual? The Scriptures provide us with a clear warning against physical intrusions. The lender who seeks a pledge from the borrower as collateral for his loan is not to enter the borrower's house to seize it, and the Talmud reads that prohibition as applying also to the officer of the court. The Talmud legislates also against visual intrusion: a man is not to put himself into a position in which he can spy on his neighbor or his neighbor's domain. Basing itself on the Talmud the codified Halakah regards even visual intrusion as a sort of trespass for which remedies are available in civil law. According to such a jurisprudent as Rabbi Menahem Ha'meiri the Talmud is sensitive even to the phenomenon of aural intrusion -- an anticipation of the evils of electronic surveillance.

A concern for social interests

The Halakah, however, does not absolutize individual privacy. It will not do to forget the codified principle that a man may take the law into his own hands even when he is not faced with an imminent and irreparable loss. A laborer may enter his employer's premises to get his unpaid wages, a landlord may enter his tenant's home to collect unpaid rent, and the victim of a robbery may invade the robber's haunts to recover his property. Even the Biblical stricture is limited, according to the Talmud, to a case in which the creditor had not taken a pledge from the debtor at the time the loan was made.

It will be fruitful to explore several areas of interest to modern man in which Jewish tradition reveals a tension between the concern for the privacy of the individual and the concern for important social interests.

The balance is maintained

It is unnecessary to elaborate on the importance of tsedakah in Judaism. Nor is it necessary to expatiate on the strong feeling that pervades the aggadic and halakic literature against all acts or words or gestures that might embarrass any human being, let alone the poor and the handicapped who are the recipients of charity. The words of the Psalmist "Blessed is he who considers the poor"; the story of Mar Ukbah, that secret giver who would rather jump into a fiery furnace than reveal himself to his beneficiary; the existence of a Hall of Secret Gifts in Jerusalem, where secret givers brought their donations and departed, and where people of gentle birth who had fallen on evil times could pick up their sustenance without revealing their identities; and Maimonides' Eight Degrees of Charity -- all of these bear witness to a sensitive concern for the preservation of human dignity.

Noble sentiments, however, have to be balanced by prosaic realities. In Jewish communal life public philanthropy was in the realm of public law, and contributions to communal charities were enforceable by the instrumentalities of that law. And it is in the enforcement of the welfare laws that we discern interests which, if not always competing, certainly did not coincide. It was in the interest of the individual Jew in need to ask for material aid sufficient to sustain life and dignity, and it was in the interest of the society that was called upon to support him to see to it that the welfare funds -- never unlimited -- were gathered through equitable taxation, that they were distributed with due regard for each individual's need, and that honest applicants were not victimized because of the false claims of impostors.

The necessity to assess

Some Jewish communal agency had to determine the duration of the residence of a financially solvent Jew before he became subject to assessment for the support of the soup kitchen, charity box, clothing fund, and burial fund. The standard codes tell us in plain prose about the pressures that could be exerted upon a recalcitrant citizen. The Bet Din could employ any kind of force, even the physical force of the "lashes of disobedience." Its representatives were empowered to "descend into his assets" wherever they could be found, in his presence or his absence, and extract from them the amount assessed.

Clearly the labors of the assessors had to be based on a bookkeeper's knowledge of a man's worldly wealth. And if it was lawful to scrutinize the assets of the potential contributor to fix his ability to pay, it was no less lawful to scrutinize the worldly wealth of the applicant in order to determine his eligibility to receive. The Mishnah saves us the trouble of armchair deduction. If "A" possesses a certain minimum of idle cash (200 zuzim) he is not to partake of the gleanings, the forgotten produce, the field-corner produce or poor man's tithe. The possession of a quarter of that amount would render him ineligible for public assistance if he were employing the money as active working capital in some business undertaking. The collection of helpful facts and figures must have called for painstaking investigation, and investigation is the bane of privacy.

The law dictates

But is there a law that explicitly orders the investigation of an applicant? There is. Maimonides and the later codifiers, following Rav Judah in the Talmud, rule that while we are not to investigate (badak) the stranger who asks for food, we are to investigate the stranger who asks for clothing "lest he be an impostor." The law also calls for action against one who has taken public assistance under false pretenses. If he cannot come forward with the misappropriated amount in cash he is to sell off not only such luxury items as gold or silver bath scrapers, but even his house, his festive raiment, and quality bedding and table-ware, and make do with cheaper substitutes. If any Jewish housewife ever harbored warm feelings toward a communal assessor when he cast a cold appraising eye on her silver candelabra, it has not been recorded in the literature.

The community would of course "carry" an applicant -- the value of whose property rendered him ineligible for public benefits -- if a current buyer's market would make immediate liquidation very costly. Here again we are justified in assuming the employment of tested techniques of valuation, and the care to separate assets that would bring a fair price if sold at once from assets whose current market value was seriously depressed.

The difficult question of priorities

Finally, as we would expect, we encounter in the codes that melancholy refrain familiar from time immemorial to all harried supervisors of public welfare: "There are more poor people before us than can be fed or clothed or ransomed out of the available funds." With these words we are immediately plunged into the techniques of assertaining social priority and social status. Let us sidestep the bewildering difficulties involved in establishing the primacies of caste and family purity --whose sense of privacy was ever enhanced by the rattling of skeletons in the genealogical closet? Instead, let us turn our attention to one criterion of preference that has more meaning for our day -- the criterion of established residence.

Just as a man's poor relations had a prior claim on his generosity to that of non-relatives, so did the local poor take precedence over the distant poor. Of course the tradition legislated hospitality to the traveling mendicant. He was to be given a loaf of bread of minimum weight, the cost of a lodging, and food for three meals if he stayed over the Sabbath. The realities of Jewish life, however, brought into harsh focus many situations in which the relatively solvent citizens of a community found it impossible to do justice to both the local poor and the poor who had been driven by necessity into their midst. One example taken from the seventeenth century points up this agonizing problem. In 1623 the Lithuanian [Jewish] Council issued a resolution proclaiming that Lithuania and White Russia had been overrun by Jewish beggars from afar, some of whom tried to pass themselves off as scholars, yet often were found to have used tsedakah money in "living it up" and drinking in sporting houses. The text of the resolution:

"No beggar whatever shall be given anything except transportation to send him away. Neither shall he be kept in one's house for more than twenty four hours. If one is unable to get rid of him or expel him by the power of the Jewish authorities one may invoke the aid of the Gentiles, and there is no sin in doing so. Only if upon Rabbinic investigation it is proved that the beggar has relatives here able to extend him substantial aid shall he be given the opportunity to approach those relatives."

Practical realities are germane

The examination of the Jewish legal tradition on public welfare shows us that we cannot be our brother's keeper without, in so many ways, invading our brother's private life. Some of the considerations adduced by Mr. Justice Blackmun should be given wider currency:

"This agency, with tax funds provided from federal as well as state sources, is fulfilling a public trust. The state, working through its qualified welfare agency, has appropriate and paramount interest in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses. Surely it is not unreasonable in the Fourth Amendment sense or in any other sense of that term that the State have at its disposal a gentle means of limited extent, and of practical and considerate application, of achieving this assurance.

One who dispenses purely private charity naturally has an interest in and expects to know how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well expect more, because of the trust aspect of public funds . . . "

There is no inspired flight of rhetoric here, no vision of a Heavenly Welfare State to challenge and activate the imagination, nothing suggestive of the idealism of Maimonides' Eight Degrees or of the awe-inspiring sensitivity of Mar Ukba. Yet there is something here that is not to be deprecated: the wholesome integrity and responsible stance of a concerned citizen who wants to do the right thing and at the same time not be "taken in" by the charlatan and the chiseler. The words of the court speak with robust sense to the practical aspects of a nagging problem that will bedevil our society for a long time to come. They would have been understood and welcomed by those warm-hearted and tough-minded Rabbis and laymen who guided the daily activities of the Lithuanian Vaad and the Council of the Four Lands, and by Jews in all ages who administered the public welfare and occupied themselves in faithfulness with the wants of the community.