Apple Computers, Privacy, and the REAL fruit of the Garden of Eden?

2014

Rabbi Moshe Taub

I was talking with an old friend recently when, out of character, he asked what I spoke about in my drasha this past Shabbos.

After I went over what I thought was a novel idea that I shared from the pulpit, he responded with disappointment. “You didn’t mention the controversy with Apple?”

He was of course referring to the issue presently being widely debated. The FBI is seeking access to the IPhone of the terrorist behind the San Bernardino attacks.

Amazingly even the FBI cannot get past the 4-6-digit code that unlocks the phone for the user each time he uses it.

It is of particular embarrassment that immediately upon descending on this killer’s home the FBI made the horrible blunder of resetting the passcode on his computer –thinking that this will gain them access to stored backup from the phone –when in reality that ended all backups, leaving the actual phone – which they can’t seem to open – the only source for the potential data they wish to discover.

For their part, Apple Inc. is fighting a February 16 court order demanding that Apple create a program, or a window, that would bypass this encryption, thereby allowing the government to discover what may be important information. If such information indeed exists on this phone, this may prove helpful in thwarting future attacks.

Apple contends that there is no such thing as a unique window just to gain access to this one phone, rather, Apple argues, by creating such a program they are creating a way into all phones. Such a program can then be misused and abused.

My friend explained that people are curious as to the Torah’s perspective.

He continued. “In my shul the rav explained that the ‘right to privacy’, at least as embraced in modern culture, is not a Torah ideal. Pikuach Nefesh certainly trumps any ‘right’ that may or may not exist”.

One of the great challenges of rabbanus is being asked questions relating to the news of the moment. Often times, the answers to these questions need the counsel of a major posek, as they are not always so black and white.

This rav is certainly correct that all too often we tend to put too much faith into democracy, believing that the morals upon which the United States was founded –as well intentioned and wonderful as they indeed are – are the highest form of principles.

While it is true that it has been argued by great poskim, like Harav Babad in shu’t Chavtzolos Hashurin and the Netziv by the dor hapalgah that other forms of governance are inherently wrong, or dangerous, this does not mean that democracy is always kodosh.

It is also true that if the argument is between pikuach nefesh and protecting our privacy from a distant and perhaps minimal threat of the government abusing this work-around, then pikuach nefesh would certainly be the victor.

But there are other halachic matters to consider. While I am not ruling one way or the other, nor discussing all sides of this question, there are other ways to view this particular question from halacha’s perspective.

Tim Cook, the CEO of Apple made an interesting observation about our modern times.

If one wanted to learn about someone, from where would one glean more information?

• Being given free unencumbered access to search their home
• Being given free unencumbered access to their smartphone

For the readers who, thankfully, do not use such devices, the answer is most obviously the smartphone. Users of such devices have stored credit card and banking information, passwords, correspondence regarding home mortgages, finances, work payment slips, birthdays, social security numbers, private conversations between friends, family and rabbanim. This is not to mention the tracking software that allows parents to know where their children are at all times, as well as all work-related emails to discover.

Never before in the history of man has something so small carried this much potential to create havoc.

 In other words, it is being argued that the fear is not so much the American government getting hold of this window into all phones, but our common enemies. Recent news has made us aware that even the secretary of state may use private devices (although not private emails) to share the most sensitive of state information. Imagine if bad actors get a hold of this software that Apple is being asked to create. Would they not use it to discover secret codes to our energy infrastructure, or air traffic control data, or where the children of highly placed diplomats are?!

Assuming, for the sake of argument, that Mr. Cook is correct, let us explore some of the halachic considerations and ramifications.

The first question is if we risk a possible present danger (i.e. perhaps finding out, via access to this particular phone, if other plans are in place) for a future greater possible danger (i.e. the dangers of creating an access to all phones)?

Rav Chaim Ozer in his shu’t Achiezar, for example, rules that if a patient is in a possible life threatening situation and a procedure can be performed that will possibly cure him, but also may bring about his death –then one may not perform this procedure. Such a view may support Apple’s position.

Of course, how we weigh different levels of risk is beyond the scope of this column. The curious reader can start with “Dangerous Disease & Dangerous Therapy” by Akiva Tatz where this issue is delved into.

A second halachic consideration goes back to something once mentioned a few years ago in these pages. The Chazon Ish wondered about the case of an arrow that is heading toward a group of people and will certainly kill them. Let’s say that one has the opportunity to divert it so that it will miss this group of people –yet instead kill another, single person; what should one do?

Much of the halachic discussion hinges upon how action is defined. As we know from hilchos Shabbos, not all actions are equal. There are gramas, garmis, psik reisha, and others—various forms of indirect or noncommittal action, not all of which are actually deemed actions by Torah law.

The Chazon Ish suggests that one who diverts the arrow can consider this not as an act of killing someone but of saving of many.

Yet, for a number of reasons, the Chazon Ish was hesitant and did not rule.

The Tzitz Eliezer is more certain. He proves that inaction, the principle of “Shev v’al taaseh (sit and do nothing),” is better, implying that in such a case, an “error” of omission is always safer than one of commission.

So that here, perhaps, when considering the risks of action (creating this access point) and risks of non-action (not knowing if we are lacking information from this particular phone) shev v’al taaseh may just be the better path.

A third halachic issue related to this case might be the question of an immediate versus a later (potential) risk. Rav Ovadia Yosef dealt with this issue regarding the release of potentially dangerous prisoners in order to save lives. He rules that the immediate concern should come first. While this would support the FBI in our case, many prominent poskim disagree with Rav Yosef in this regard and argue for the greater risk of the two –whichever it may be –winning out.

In short, this current debate seems complex from a halachic perspective.

In the spirit of Adar, let’s end on a lighter note. Perhaps we can explain why, according to recent polls, over half the country supports Apple in trying to block the action of the FBI.

There is a myth found uniquely in the non-Jewish world that what was eaten from the eitz hadaas was an apple. In truth, while Chazal offer many suggested items, an apple is never among them. Rather it is likely that the ‘apple myth’ came from confusing the Latin word for evil, malum, with that of for apple, mālum.

Perhaps it is therefore ingrained in so many of our fellow citizens to keep away from Apple Inc.!