WIRETAPPING IN JEWISH LAW

By HaRav Yosef Yeshaya Braun, Shlita,
Mara D’asra and member of the Badatz of Crown Heights

BUYING AND SELLING (ALIYOS) ON SHABBOS

It is a minhag (custom) to sell the various kibbudim (honors) and aliyos (being called up to the Torah)—even the right to pay for maintenance and utilities—to the congregants of a shul. In many shuls this takes the form of an auction, with bidders vying for the privilege of buying these mitzvos. When executed properly, the bidding can foster many positive results: it prevents machlokes (disputes) as to who receives the honors, supports the shul financially, and also promotes kavod ha’Torah (respect for the Torah) indicating that mitzvos are valuable and not dispensed freely.

Since these auctions generally take place on Shabbos and Yom Tov, the question must be asked: how is it permissible to disregard the issur d’Rabbanan (Rabbinic restriction) of mekach u’mimkar (buying and selling)?

Some suggest that perhaps the issur of mekach u’mimkar is mitigated since the sale is for a mitzvah that will pass by the time Shabbos is over, and its proceeds are used for tzorchei rabbim (communal needs). (There are dispensations which legitimately permit other—but lesser—Shabbos restrictions when associated with a mitzvah or to benefit the community.) However, poskim are not satisfied with this approach and offer justification only b’dochek (with difficulty): since there is no physical transaction with a mitzvah auction—the honor the buyer receives is intangible. Indeed, these auctions are the common custom.

But many authorities urge a yarei Shamayim (person with true fear of Heaven) to view any bids as a pledge to tz’daka (charity), to be fulfilled even if the corresponding kibbud is won by a higher bidder.* In this way, it is similar to the case of a Mi Sh’Beirach—a blessing for health or success— where the beneficiary pledges money to tz’daka; a dispensation for this process exists for Shabbos and Yom Tov.

The time-honored auctions that take place on Simchas Torah—the day we make a siyum (celebration of conclusion) of the yearly cycle of Torah readings and dance with the Torah (and on Shabbos B’Reishis as well, when we celebrate the beginning of the new cycle)—are sanctioned by poskim; there is extra dispensation for this minhag that celebrates preeminent kavod ha’Torah.

* Ostensibly, this stipulation can be fulfilled without yerei Shamayim overextending themselves: they can cap an amount they wish to donate to the shul and utilize the pledge to join the bidding many times over until they win!

IS WIRETAP EVIDENCE ADMISSIBLE IN BEIS DIN?

Spying on another person’s activities is termed hezek re’iyah (damage through watching, see Halacha #374) and is considered a violation of their privacy. There is no corresponding aspect of hezek shemiah (damage through eavesdropping) discussed in Chazal—and one of the reasons is that a person could prevent such personal invasion by modulating private conversations. However, in an age of phone-tapping, room-bugging and other—even innocuous—surveillance systems, a person has no way of protecting themselves from being overheard when sharing confidences.

Although halacha does not expressly forbid obtaining information by tapping or bugging another’s conversations, these practices are certainly restricted under the cherem d’Rabbeinu Gershom (ban enacted by [early 11^th century authority] Rabbi Gershom of Mainz) of opening another’s correspondence; this ban includes all forms of breaching another’s privacy. If hidden surveillance apparatus is specifically needed for the purpose of a mitzvah or for protection from personal loss, a heter (dispensation) can be obtained in special cases—insofar as it is legal.

May Beis Din utilize recorded tapes obtained through such surveillance systems (or wiretaps, whether aboveboard or not) as testimony? However, evidence was obtained, its acceptance by Beis Din relies on its credibility. So how credible is surveillance footage?

The halachic status of the information culled from video or audio recordings is called umdena d’muchach (obvious assessment [of facts]) which does not have the same halachic status as eidus (testimony). Another factor relates to the status of a person’s voice, called tevias ayin d’kolah (detection by voice). However, it is only a siman beinoni (mediocre indicator of identity) and not a siman muvhak (conclusive indicator of identity); since it is not overwhelming proof, it is inadmissible as evidence on its own, in most cases. This applies even to a live voice; it is especially so with a recording, which is susceptible to tampering: imitation, editing or splicing.

Even when deemed inadmissible as evidence in itself, surveillance can provide the Beis Din with the background information which can be used to question the parties and witnesses involved in a case.

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