1http://www.flickr.com/photos/36321226@N04/

Privacy in the year 100 BC:

how the Hebrew law views privacy

Agenda

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•An introduction on the the Hebrew Law

•The text: architecture and privacy

•The Right to Privacy

The Hebrew Law

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Mishna

500 BC - 200 CE

Israel

Talmud

500 CEBabylon

& Jerusalem

Rambam "Set Table"

1170 CESpain

1700 CEVenice

Rashi

1105 CEFrance

Tosafot

1150-1300 CEEurope

Talmudic Dialectic Analysis

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Talmodic Text

“Rashi” commentary

“Tosafot” commentary

Other commentary

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Bava Batra 2a-b בבא בתרא ס,א

http://www.flickr.com/photos/36321226@N04/

Mishnah, Bava Batra 2a-b (500 BC - 200 CE)

A man would not open a window to a common yard. Bought a house in another yard, he would not open it to the common yard. Built a new floor, he would not open it to the common yard. If he would like to, he can build a room in front of his house, build a new floor, and open it up to his house.

A man would not open to a common yard a door against door and a window against window. Was small, he would not make it larger. Was one, he would not make it two. But, if the opening is into a public area, was small can be large, was one can be two.

Talmud, Bava Batra 2a-b (~500

• The Talmud is contextualizing the text by quoting the story of Ballam, (bible, Numbers 24-10):

“and whose eyes are opened: How beautiful are your tents, O Jacob, your dwelling places, O Israel.”

• Balaam’s blessings are related to the social-architectural patterns of the Israelites‘ tents:

“What did Balaam see? He saw that their tents openings were not directed at each other, and said: they deserve that the divine spirit will be on them.”

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Rashbam (1080-1160)

• The Rashbam introduce the term Hezek Re’iya, which literally means “the damage of being seen,” to describe the harm done to the person being watched by another in a private premise.

• The characteristics of this damage is hotly debated thereafter.

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Ramban (1194-1270)

The Ramban determines that Hezek Re’iya is an actual damage, and explains the logic:

• personal modesty,

• protection against gossip,

• and the evil eye.

He argues that a right to open a window cannot be waived or forgiven by the offended, as the damage from privacy lost cannot be fully measured.

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Ramah (1170-1244)

The Ramah expands Ramban’s notion, and identifies two aspects of privacy in the Mishna, correlating with two types of damages:

• The first aspects is rooted in Nezikin, which stands for civil damages. Opening a window into your neighbors yard limits the usage of the yard. This right can be waived, negotiated, or sold.

• The second aspect is rooted in moral considerations, as it violates personal modesty. This aspect of privacy, is in the realm of public interest, affects the whole society, and is symbolized in the Balaam story. Therefore, it cannot be waived.

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Set Table (~1700)

Set Table defines a balance between privacy and other rights (e.g., ownership rights).

Even if neighbors have prior rights to an opening to a common yard, they still needs to keep the opening in a distance and an angle that would not allow a view to the house.

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The Right to Privacy (Warren and Brandeis, 1890)

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis...

...Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone" Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."...

...The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand)...

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Architecture and Facebook

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Designing for privacy in physical architecture is not that different than designing software

http://www.flickr.com/photos/eversion/68247220/

Designing for Privacy

• When designing privacy controls in a piece of software, we need to ask ourselves

• Is an information space private? public? common?

• How much control the user has? e.g., can the user opt-in? opt-out?

• Can other users gain access to an information space? Do they need to be active? passive?

• If some private information is shared, is the user properly compensated?

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Links

• Mishna Text: http://kodesh.snunit.k12.il/b/h/h43.htm

• Talmud text: http://he.wikisource.org/wiki/בבא_בתרא_ס_א

• Nahum Rakover on The Protection of Privacy: http://www.daat.ac.il/mishpat-ivri/skirot/80-2.htm

• Eliahu Lifshitz on The Right to Privacy in the Hebrew Law and the State’s Law: http://www.daat.ac.il/mishpat-ivri/skirot/33-2.htm

• Michael Birnhack on Control and Authorization, the Theoretical Basis for the Right to Privacy

• Ruth Gavizon on Privacy: http://www.gavison.com/c915-privacy

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