The NSO Affair: Why Jewish Privacy Ethics Matter

Last week, the US government blacklisted Israel’s NSO Group for engaging in “transnational repression” and “activities contrary to the national security interests of the United States.” These are serious charges. The uproar over NSO’s Pegasus spyware has intensified since a July global investigation report revealed that Pegasus is being used by various governments (including repressive regimes) to police activists, journalists, political rivals and critics.

Pegasus is powerful. It is capable of reading text messages, accessing calls, discerning passwords, tracking locations, using a device’s microphone and camera, and gathering information from applications. In short, it provides virtually complete access to a user’s data.

Not surprisingly, NSO maintains that Pegasus is an indispensable security tool and that it requires customers to use its products only for national security and criminal investigations.

In response to the US measures, a spokesman claimed that NSO has “the most rigorous human rights and compliance programs in the world.” But a few hours later, a Hungarian official confirmed that his government had purchased the Pegasus software amid credible reports that Hungarians are using it to target journalists, businessmen and opposition politicians.

Some in the tech industry have already delivered a verdict. Amazon Web Services has closed the NSO accounts. Facebook is suing NSO for allegedly hacking 1,400 WhatsApp clients. A prominent Israeli cybersecurity veteran has even asked tech companies not to hire former employees of companies like NSO.

Others claim that this is all political, that the NSO is being unfairly targeted as part of a broader campaign to delegitimize Israel. Many Israelis are convinced that NSO is offering a product that is unremarkable in the spy world, and that the outcry is only because NSO is Israeli. Many also believe that the ethical responsibility for any harm that may occur rests with those who buy and implement the product, not those who create and sell it.

But the US statement raises the stakes for those looking to dismiss the Pegasus controversy. Simply put, there is a clear case that needs to be answered. Worrisome allegations about the conduct of Israeli companies should never be dismissed lightly, especially in a nation that aspires to ethical excellence.

All of this raises key questions: What does Judaism have to say on this issue? Where are the rabbis? How can a high-profile public issue with international human rights implications be seemingly ignored by professors of Judaism? Judaism is obviously much more than the regulations of kashrut and the observance of rituals. It is a collective wisdom system, especially when it comes to behavior. You cannot keep silent when Jews are potentially engaging in halachic misconduct that could harm the innocent.

A thousand years ago, Rabbeinu Gershom issued a cherem (prohibition) against the unauthorized reading of private letters. That cherem is still in place, and today it would prohibit intentionally eavesdropping on private phone conversations or monitoring private data. Depriving someone of privacy is prohibited even if the target party suffers no adverse consequences, much less if the surveillance results in financial or physical harm, or in the disclosure of personal information.

Jewish law makes exceptions to Rabbeinu Gershom’s ban when there are well-founded criminal or security concerns. But the decision as to whether there are such grounds is not for those who have an interest in circumventing the ban. In the 13th century, Rabbi Shlomo ben Adret noted that the ban was instituted “to ensure that the Jewish people act in a correct and modest way.” Thus, Adret wrote, if, in a certain situation, a court determines that violating privacy is unavoidable for worthy purposes, the court could authorize a waiver.

The default position is that the prohibition on the violation of privacy must be respected, unless it can be shown that there is a compelling case to override it. The idea that Jews could facilitate the invasion of the privacy of journalists, political rivals and critics of the powerful, where there is no evidence that these individuals have done something wrong, represents an ethical violation that goes against Jewish law. .

When it comes to sifting through the contents of someone’s phone and using it as a weapon to spy on them, Jewish law requires that proponents of such a course must show that non-meddling would lead to danger. Any spyware with safeguards so lax that violating Rabbeinu Gershom’s ban can become the normative behavior of those who implement the software, it works in a way that is at odds with Judaism.

Those who suggest that it is Pegasus users who are guilty of misconduct, and not NSOs, ignore Jewish sources that do not set arms manufacturers free.

“Jewish law recognizes that the indiscriminate sale of weapons cannot fail to endanger the public,” wrote Rabbi David Bleich. “It is precisely because ‘morally blind’ criminals are willing to commit crimes that Judaism teaches that it is forbidden to provide them with the tools of their trade.” Arms dealers cannot afford to shirk moral responsibility for how their weapons are used.

There is no use answering that “everyone does it” or that NSO is being unfairly attacked. Judaism expects more. He expects Jewish-run companies to strive for exemplary ethical standards with meticulous plans to protect the innocent, not to make them more vulnerable. He expects Jewish companies to be leaders in raising international ethical standards. He hopes that human considerations always outweigh the pursuit of financial gain.

The ideas of the Jewish tradition contain vital corrections with the potential to have more impact in our digital age than ever. It is that moral vision of a Judaism that insists on the pursuit of public virtue that our rabbis would do well to defend.

The writer, a rabbi, is a founding scholar of the Greater Pittsburgh Jewish Federation. He divides his time between Pittsburgh and Jerusalem.

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