Rav
Yitzchak Grossman Shlit”a, Dayan and Lecturer at the Bais HaVaad

Reading the
Correspondence of Others

Parshas Shelach contains the
tragic narrative of the spies sent to survey the Land of Canaan. While their
task was to observe and to report their observations, a major component of
modern espionage is signals intelligence, and communications intelligence in
particular, with Henry L. Stimson’s celebrated distaste for the practice
(“Gentlemen do not read each other’s mail.”) seen as laughably quaint. I am not
aware of any significant discussion of the ethics of such intelligence
gathering in the service of the national interest; this article explores some
of the Halachah pertaining to such conduct in the context of the intercourse of
private citizens.

The
Cherem of Rabbeinu
Gershom

There
is a medieval tradition, generally attributed to Rabbeinu
Gershom Me’or Ha’Golah, of a cherem [ban /
anathema] against reading (or opening) a letter addressed to another.

The acharonim
have
additionally noted various halachic problems with
reading others’ mail, either as rationales for the ban or as independent
considerations:

• The utilization of another’s
  property without permission is forbidden.
• “Thou shalt love thy neighbor as
  thyself” – “that which is hateful to you, do not do unto your friend”.
• “Thou shalt not go up and down as a
  talebearer among thy people”.
• Geneivas
  da’as is
  prohibited. [The phrase generally refers to deception, i.e., the planting of a false idea in the mind of
  another, whereas our situation appears to be the exact opposite: the extraction of a true idea from the mind of
  another;
• It is
  prohibited to cause harm to another, even indirectly (grama
  be’nezikin asur), and reading others’ correspondence usually causes harm, whether
  financial or otherwise.

Among
the Sephardim, it was common to inscribe a reference to the cherem
on
(the outside of) letters, although the cherem applies
regardless.

Is the Cherem
Still
In Effect?

There
is a tradition that Rabbeinu Gershom’s ban on polygamy was only in force until
the end of the fifth millennium, and some extend this to our cherem, too. The
basic tradition with regard to polygamy itself, however, is not universally
accepted, and our cherem in particular
may have no expiration date, as unlike polygamy, which is perfectly permissible
according to Biblical law, the reading of others’ mail may be prohibited to
begin with, for the various reasons given above, and so Rabbeinu Gershom would
not have included a sunset clause in his cherem.

Discarded
Letters

Some
of the medieval formulations of the cherem contain the
dispensation that “if he has discarded it, it is permitted”, and this has been
understood to mean that even if the discarding has not been directly observed,
the mere fact of the letter being apparently abandoned allows us to conclude
either that it has been deliberately discarded or that care was not taken to
secure it, due to its not containing any confidential information. There is,
however, an opinion that limits this to where the letter has been discarded in
a publicly accessible place, where it is likely to be read, as this clearly
indicates that the discarder is unconcerned with its being read, but where it
has been placed into a private or even a public garbage can, the contents of
which are generally unlikely to be exposed, as dumpster-diving is uncommon in
contemporary times, there is no basis to impute such unconcern to the
discarder.

Additionally,
there is an opinion that forbids reading a letter found in the street, as even
insofar as the recipient does not care if the letter is read, the sender may
still care.

Unsealed
Letters and Postcards

The poskim
debate
whether the cherem applies to
unsealed letters and postcards; on the one hand, since the sender did not
bother to seal his missive, he evinces unconcern with its being read, but on
the other, perhaps he simply relies on general compliance with the cherem. Additionally,
irrespective of the sender’s lack of concern, the addressee of the missive may
object to third party perusal.

Permission of
the Recipient

There
is an opinion that permission from the recipient of a letter suffices to allow
third party perusal; others maintain that permission from the sender is also
necessary.

Extenuating
Circumstances

There
is an opinion that the cherem applies even in
the face of a mitzvah. On the other
hand, some maintain that just as Rabbeinu Gershom’s ban on polygamy may not
apply in situations of mitzvah and aveirah, so, too, does
our cherem include such an exception, and it is therefore permitted for an
educator to read the correspondence of a female student with a young man where
there is a suspicion that the contents are illicit, although it is preferable
to simply ban the correspondence, and in any event, no one but her teacher may
read it, and it must be perfectly clear that any information he gleans from his
perusal must remain absolutely confidential. Similarly, where parents or
teachers have a reasonable suspicion in particular circumstances that their
children or students are corresponding with those who may incite them to sin,
or where there is a reasonable suspicion of scandalous intercourse on the part
of a woman, the parents, teachers, husbands, batei din or their agents
may read the correspondence in order to prevent the illegitimate conduct or
take other appropriate action.

It
is unclear whether it is permitted to read another’s correspondence in order to
avoid harm.

Eavesdropping

Some
maintain that the cherem applies to
eavesdropping on telephone conversations and the like.

Beyond the Cherem

Some
maintain that even where the cherem is technically
inapplicable, excessive curiosity and nosiness are inappropriate.