The Halachah
Of Hacking

Rabbi
Yitzchak Grossman

With each
passing election, the spectre of cyber-crime looms larger and larger. This is
in addition to computer hacking carried out in the corporate arena. A number of
years ago, a shadowy group of computer hackers styling themselves the
“Guardians of Peace”, believed to be agents of the North Korean government,
breached the security of internal computer systems of Sony Pictures
Entertainment, accessed a trove of confidential and sensitive material,
including personally identifiable information about the company’s employees and
their dependents (including social security numbers, bank and credit card
information, compensation details, and HIPAA protected health information) and
email between the company’s employees, and disseminated this information
publicly, causing embarrassment and inconvenience to many individuals, and
considerable financial harm to the company. While it is self-evident that such
conduct is morally wrong, we consider here the question of the application of
traditional halachic categories and precedent to this
quintessentially modern scenario.

The Cherem Of Rabbeinu Gershom

There is a
medieval tradition, generally attributed to Rabbeinu
Gershom Me’or Ha’Golah,[1]
of a cherem [ban
/ anathema] against reading (or opening) a letter addressed to another.[2]
Some poskim take
for granted that the cherem applies to eavesdropping and the
interception of electronic communications as well,[3]
although others adopt a narrow, literal reading of the cherem, and limit its applicability to its
explicit subject, written correspondence.[4]

Related Prohibitions

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.[5]
• “Thou shalt love thy neighbor as thyself” – “that which
  is hateful to you, do not do unto your friend”.[6]
• “Thou shalt not go up and down as a
  talebearer among thy people”.[7]
• Geneivas da’as
  is prohibited.[8]
  [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; I do not
  understand the analogy.[9]]
• 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.[10]

Most of
these concerns obviously apply to hacking in general (and to our situation in
particular) and are indeed so applied by contemporary poskim.[11]
The question of the applicability of the prohibition against unsanctioned
utilization of another’s property is an interesting one: R. Avraham Sherman
(discussing eavesdropping on a telephone call) apparently understands it as
applying to the intangible entity of information,[12]
and should therefore certainly apply it to hacking, but R. Chaim Shlomo
Rosenthal (discussing a similar case, the listening to a recording of a
telephone call without the participants’ permission) is unsure whether the
prohibition applies to such situations.[13]
It can be argued that unauthorized electronic access of a computer
system is tantamount to unauthorized physical access of that system, and
is therefore prohibited by the prohibition against unauthorized utilization of
another’s (tangible) property, but this is a non-trivial assertion.

Hezek
Re’iyah

One is
forbidden to look from his window at his neighbor’s yard “in order that he
should not damage him with his looking”,[14]
and even where there is no concern for “damage of the eye” (i.e., ayin
ha’ra), it is
nevertheless prohibited to look at the affairs of another when conducted in his
home and property (i.e., where there is an expectation of privacy), “for
perhaps he does not desire that they should know his actions and affairs”.[15]
Although the scope of this prohibition obviously requires elucidation, it
presumably extends to the forbidding of the unauthorized accessing and public
dissemination of private information, and has indeed been invoked to this
effect by contemporary poskim.[16]

We conclude
with the uncompromising position of R. Yaakov Avraham Cohen: “Those who break
into computer codes or into any protected data store or similar, who are called
“hackers” – their sin is severe.”[17]

---

[1]    
Shut. Benei
Banim chelek 3 beginning
of siman
17
and note 1 of
Rakover’s article (cited below).

[2]     Shut. Maharam bar Baruch defus Prague siman1022; Kol Bo end of siman 116;
Shut.
Maharam Mintz siman 102.
For more or less comprehensive discussions of the cherem, see Encyclopedia
Talmudis Vol. 17 end of entry cherem de’Rabbeinu Gershom os 18
cols. 452-54; Nahum Rakover, Ha’Haganah Al
Tzinas Ha’Prat – Cherem De’Rabbeinu Gershom Be’Devar Kerias Michtavim;
R. Avraham Naftali Zvi Roth, Al Devar
Ha’Cherem Al Kerias Igeres Shelo Be’Reshus, Ha’Maor year 32 kuntres 3 (254) pp.
11-14; and R. Jacob J. Schacter, Facing
the Truths of History, pp. 242-47 and notes 165-77 (pp. 269-71).

[3]     Piskei-Din Shel Batei Ha’Din Ha’Rabbani’im
Be’Yisrael
Vol. 14 p. 292 s.v. Barur she’ein hevdel ikroni (R. Avraham Sherman); Piskei-Din
ibid. p. 307 s.v. U’Pashut Ha’Davar she’yesh le’harchiv ha’davar(R.
Chaim Shlomo Rosenthal); Mishpetei
Ha’Torah chelek 1 siman 92 os 4 pp.
337-38; R. Yitzchok Zilberstein, cited in Binas
Ha’Shidduch perek 7 she’elah 16 p. 379;
Emek Ha’Mishpat Hilchos Sh’chenim siman 26 os 4.

[4]     Shut. Ve’Darashta Ve’Chakarta chelek 1 yoreh de’ah
siman 46
os 1 (in response to R. Tzvi Spitz, the
author of Mishpetei Torah); Shut. Shevet Ha’Kehasi chelek 4 (inyanim
shonim) siman 327 os 2.

[5]     Shut. Toras Chaim (Maharchash) chelek 3 siman 4; Shut. Kol
Gadol siman 102.

[6]     Shut. Chikkei Lev yoreh de’ah siman 49.

[7]     Shut. Halachos Ketanos chelek 1 siman 276; Chikkei Lev ibid.

[8]     Chikkei
Lev ibid.

[9]     Rakover
ibid. (note 15)
defends the invocation of geneivas da’as in this sense and cites
other instances of such usage.

[10]   Toras
Chaim ibid.

[11]   Shevet
Ha’Kehasi ibid. forbids
the operation of “eavesdropping equipment that is called ‘scanner’” due to, inter
alia, the concern of the Halachos Ketanos for rechilus; Ve’Darashta
Ve’Chakarta ibid. os 6 forbids eavesdropping on telephone conversations due
to the concerns of ve’ahavta le’re’acha kamocha, rechilus and
geneivas da’as.

[12]   Piskei-Din
ibid. p. 292. An
interesting parallel to the idea that the category of theft can apply to
intangible information is the position of the Shut.
Machaneh Chaim 2:CM:49 s.v. U’Le’da’atithat plagiarism of
the Torah of another constitutes geneivah or gezeilah, in spite
of the absence of any loss to the victim, which he proves from the Talmudic
characterization of the study of Torah by a non-Jew as theft from the Jewish
people.

[13]   Piskei-Din
ibid. p. 307. See
Rakover ibid. (note 17).

[14]   Rema
choshen mishpat 154:7.

[15]   Shulchan Aruch Ha’Rav choshen mishpat,
hilchos nizkei mamon, se’if 11.

[16]   Shevet
Ha’Kehasi ibid.; R.
Zilberstein ibid. p. 380.

[17]   Emek
Ha’Mishpat ibid.