Keeping Us Safe, Part 1: Public Safety in Jewish Law

Darla Strouse: We want to welcome all of you to Bet Aviv and the second Scientists in  Synagogues seminar. And it’s nice to have you here. We also want to welcome several guests who are here who are just loving the topics and want to come to each of the seminars.

Most of us in the room know Rabbi Joseph, but some of you may not know everything. So Rabbi Joseph is in her fifth year as rabbi at Bet Aviv. Born in Melbourne, Australia, she was ordained at the Hebrew Union College in Cincinnati and only the second Australian woman in her country to be ordained. Rabbi Joseph worked for 28 years in congregations in Australia and the United States and in leadership positions with the Union for Reform Judaism. She has several master’s degrees. She describes herself as loving God, the Jewish people and Jewish traditions, and she continues to love the exploration of Jewish texts. 

Linda Joseph: So I’m actually going to stand. Everyone can hear me? Yes. Hi. Good Shabbos, Shabbat Shalom! Let’s begin with the blessing for studying Torah, La’asok b’divrei Torah – to soak ourselves in words of Torah, because indeed, what we’re going to be looking at today and keeping it safe, Subtitled Air Cargo Screening x-ray technology, is Torah itself. And we are also going to create Torah today. But more about that in a second, so please join me in the blessing. Baruch atah Adonai, Elohenu melech ha-olam, asher kid’shanu b’mitzvotav v’tzivanu la’asok v’divrei torah.

Jewish texts on building and maintaining a safe environment

So our session today is going to be in three parts. First of all, I’m going to be teaching some texts. Then Howard is going to be teaching us about air cargo screening and x-ray technology. And then, because there is, as we will learn, very little written about this from a Jewish point of view, we are going to take the texts and try to see if we can figure out, if we were writing a Jewish point of view on this, what the Jewish point of view is. Are you in? Excellent. Fantastic.

So let’s start with text. And I’m going to teach. I’ll sit now for this. The first issue we are going to look at in our text is what does the Bible – what does Jewish tradition – have to say about safety?

And our first verse is from – and I’ve numbered these, so that should help you find them on the pages. Text #1 is from the Bible, Deuteronomy 22:8. And because we have people being streamed, I’m going to read the texts, if that’s okay with everybody. So what it says is, “When you build a new house, you shall make a parapet for your roof” – a parapet is a fence – “so you do not bring blood guilt on your house if anybody should fall from it.”

So what does this say about safety? Now, remember that often on the roofs of the ancient Israelite houses, they would do things – they would sleep up there. If you remember the story of David looking over from the palace, he saw Batsheva raving on the roof. Didn’t end up well, right, for her husband, but, you know…  so things happened on the roof. What does it say about safety? And remember the roofs in Israel – who’s been to Israel? What shape are the roofs? Flat. We’re told you have to put up a parapet, a fence. What does it say? What’s this text telling us about safety?

Darla Strouse: It’s about safety, from the very beginning, before you build [something].

Linda Joseph: Right. You need to put on your roof a safeguard, because people are doing things on the roof and you don’t want them to fall off the roof. That’s not good. Think of humpty dumpty falling off the wall. Not good. You can break something.

And what happens if you don’t put that fence on your roof? You are liable. All right, so let’s see what the Bible commentators have to say about that. Let’s look at Sforno, text #2, on Deuteronomy 22:8, in the first comment of Sforno. He comments on the blood guilt and somebody falling. “If it were to happen that someone falls off that roof, that you could not have been the indirect cause, seeing you had put up a protective railing. Had you not done so, your family might bear part of the guilt for such a mishap.”

So by putting a fence on the roof, Sforno is saying, you’ve created a safeguard. And legally, if somebody falls off your roof, you’re not responsible, you’re not reliable – liable. Sorry – you are reliable and you’re not liable. (Laughter)

What does Rashi have to say on the same verse? What does it mean?

He says that “That thou bring not blood upon thy house if any man fall from fence –” Another translation – it’s a little more old-fashioned, but we get the idea. “(The words may be taken to mean if he that he falls from it, this suggests that man deserved to fall to his death on account of some crime he had committed),” – if you fall from the roof. “Nevertheless his death should not be occasioned by your agency, for meritorious things are brought about through the agency of good men and bad things, only through the agency of evil men.” [Sifrei Devarim 229:7]

Now, I’m not sure I agree with this theology, right – that only evil people are going to fall off our roof and it was going to happen anyway. (Laughter) But what it does do is it lifts the guilt from you if you’ve built a parapet. “Oh my God. Somebody fell off my roof. I put the safety in place, but I feel so bad.” What this text is saying: don’t feel bad. You did everything that you could do. I’m not sure I like how it reasons it, but that’s what the aim of this piece from Rashi is saying. So it’s very clear in our Jewish text that we are responsible for putting a safety in place, at least on a roof. But does it apply to other things?

So now we look at Deuteronomy text #4, from the Babylonian Talmud. Now we have two Talmuds, and we’re going to get to another piece of Talmud later. This is the Babylonian Talmud, which was codified in the fifth century of the Common Era. There is also the Jerusalem Talmud, which is codified in the fourth century of the Common Era. Because the Babylonian Talmud was [covers] a longer period, it is considered by the rabbis to be the more authoritative Talmud.

So what does the Babylonian Talmud say? In Bava Kamma, it says, “The justification for this is from the ruling of Rabbi Natan, as it is taught in a baraita … Rabbi Natan says: ‘From where is it derived that one may not raise a vicious dog in his house, and one may not set up an unstable ladder in his house. [The verse states]: “You shall not bring blood into your House.”  Remember, that’s the end of our Deuteronomy 22:8 – i.e., you can’t allow a hazardous situation to remain in your house.

So it applies not just to a parapet, but from leaving out your ladder or having a vicious dog. “As long as the hazard remains, the owner is in violation of this verse, and therefore the court may excommunicate him for failing to remove the danger.” So this safety law applies to other things around your house – you have to make sure it’s safe for someone. I’m sure all the lawyers in the room are going to agree for that in terms of liability. My husband’s giving me a thumbs up. He says, “You’ve got the secular law right.”

Now, let’s look at the Jerusalem Talmud. Remember, it is not as authoritative as the Babylonian Talmud. And it asks the question, “what’s a house?” Which is central when we’re thinking about airports.

So let’s go down to the middle of the text. The verse says, “The house is distinguished by the fact that it can be used as a dwelling.” Now, what do we do in dwellings? Sleep. What do we else do we do in dwelling? Dwelling? Eat. Right? That’s how a dwelling is defined in Judaism. It’s a place where people sleep and eat. Do we do those things in airports? (Laughter) Right.

But the question is, do people do it in airports? And it also excludes a house which does not enclose four by four cubits. Now, a cubit is from here to here. So it excludes a house which does not enclose four by four cubits, six by six feet. As it was stated, a house which does not enclose four by four qubits is free from the obligation of a parapet, or a mezuzah, or an eruv.

So a mezuzah – everybody knows what a mezuzah is. That’s a little casing we put on the house. An eruv is a fence within which we can do something for Shabbat or on holidays. We can lift, we can carry. There are certain things we’re allowed to do within an eruv. But if it’s not bigger than six by six feet – so, four cubits by four cubits – it’s not considered a house. So another question we have to consider is: how big is an airport? My guess is most airports are bigger than four by four cubits.

Sifrei Devarim – this is from the midrash. The midrash is not authoritative at all, but always brings a take on something. It’s similar to text 5, but it asks the same sort of questions. (This is known as Midrash Halacha – the Midrash, or the stories, on the law.)

“If you build a new house,” it says “you shall make a railing on your roof.” We already know that. “This tells me only of building. Whence do I derive the same for acquiring, inheriting and receiving as a gift? And i.e., if I haven’t built the house, am I responsible for the safety in it?” You buy a house, right. There’s no parapet on the roof. Do I have to retrofit a parapet? That’s what it’s asking. And the answer is yes, from ibid [the same source] – “And you shall not place blood in your house.”

What is a house?

So in other words, you are responsible, when you move into a place, to make sure it’s safe – the safety guards are there. “Whence do I derive the same for a straw bin, a cattle shed and a storehouse from if you build? In that case, I might think this also includes the building of a gateway, a portico or a porch. It is therefore written ‘a House.’”  So it excludes entrances – a gateway, a portico and a porch – in terms of safety, but it includes the house. So one of the questions we have to consider is, what is an airport? Is it a gateway? Is it a house?

We have some argument for it being a house. We sleep and eat there. But how do you get into a country? It is a gateway as well. “Just as a house is characterized by being subject to occupancy, to exclude the aforementioned, which are not thus characterized.” So those are some of the things that we need to consider as we think about “What is the Jewish law?”

So let’s turn to page 5, text #7. Mishneh Torah, written by Maimonides: “It is a positive commandment for a man to build a guardrail on his roof, as it says in Deuteronomy 22:8, ‘And you shall make a guardrail for your roof.’ This applies with regard to a building used as a dwelling. But for a warehouse or a cattle barn and the like, there is no necessity. Similarly, any building that is not four cubits by four cubits does not require a guardrail.”

So we are left with the same idea. What is the law? What is the nature of an airport?  Is it a big warehouse? Is it a portico? Is it a house? The mission of Torah continues in preservation of life. “The height of a guardrail shall not be less than ten hand-breadths.” Here’s a hand-breadth. So you need at least ten of these. How big do you think that is, Howie?

Howard Feldmesser: Ten feet – about four or five feet.

Linda Joseph: [A hand-breadth is] four or five feet – we’ll go with that. Depending how big your hand is – I’ve got small hands – It shall not be less than ten hand-breadths so a person might not fall from it. In other words, it has to be high enough that someone’s not going to tip over it. If it’s here, you could trip. If it’s here, you’re not likely to fall over it. “A guardrail must be a partition str ong enough to enable a person to lean on it without falling.” In other words, it has to be not something tenuous, it has to have heft to it, so that Barb is not going to fall off. She’s got to know that that boundary is there.

“Anyone who leaves his roof open without a guardrail negates the observance of a positive commandment and violates a negative commandment. As Deuteronomy 22 says, ‘Do not cause blood to be spilled in your home. The violation of this commandment is not punished by lashes, for it does not involve deed.’”

All right, so we know now, more or less, what Judaism has to say about safety. But we have some questions, several questions – the first of which is, is the airport a house? Is it a big barn-like structure? Some of them look like that to me. Is it a gateway? So we’ve talked about a house as a place you can sleep and you eat, but it’s also a gateway to a country. And many of them look like they’re just big commercial structures. But let’s consider what we do with a house. We put a mezuzah on a house, right? Mezuzah means “doorpost.” And you’ll see here in text #9, second sentence down, “the doorpost at the entrance of a Jewish home, as well as the entrance to each of the interior rooms, except a bathroom, is where you put a mezuzah.”

Interestingly enough, the only airport where perhaps that commandment might be observed is where? Israel. So let’s look at Ben Gurion airport, text #10. The world’s largest mezuzah is over a meter long. You can see this at Ben Gurion. “In 2010, officials affixed the world’s largest Kosher mezuzah –” And there’s a picture of it there for you – “to be installed in a doorway in the interior entrance of Ben Gurion airport. The complete parchment and case together measure more than a meter in length.” You can’t miss this mezuzah – it’s a big mezuzah. There have been other larger mezuzahs installed in other places. So a mezuzah might indicate that it’s a house – on the doorposts of your house. But it also says “and on your gates.” So what’s the nature of this mezuzah? It’s in the doorway. Is this on a gate or is it on a house?

The right to privacy

The third question we have to consider, as we’re thinking about what Judaism has to say, is that this technology that Howie is going to talk about somewhat invades our privacy, right? They see our bodies, they see what’s inside our suitcases – I mean, that’s the purpose of it, right? They’re trying to keep us safe by doing that. So, what does Judaism say about privacy and the public good?

Let’s start out with this beautiful proverb that is found in Proverbs 11:13: “A base fellow gives away secrets. But a trustworthy soul keeps confidence.” What does that say about privacy being valued? No gossiping – you keep confidences. You value somebody’s privacy. That’s what this proverb says.

And now I bring an article by Jonathan Stein. This is a very modern article, but it’s one of the few I could find on the matter at hand.

“Jewish ethics value the right to privacy, but it’s unclear how much.” This is from My Jewish Learning, so it’s not the whole article – I’ve given you the link here if you want to read the whole article, but I took the last section and the final section for you.

“Talmudic Surveillance: As for Big Brother, the lack of Jewish sovereignty for much of the Jewish experience has resulted in a dearth of serious thinking about this problem. However, given the general thrust of Jewish views on privacy, it’s likely that community needs would outweigh individual interests, provided those community needs were legitimate, not simply an abuse of power for power’s sake. Thus, the Mishnah teaches that a ‘sting’ operation of sorts is permitted in the case of the ‘enticer’ who proselytizes for idolatrous religions. Jewish law requires two eyewitnesses for conviction. But if one is approached by an enticer, he is permitted to recruit another witness, hide that witness behind the curtain, and ask the enticer to repeat his solicitation to idolatry. This is not exactly the type of invasive surveillance that American civil libertarians are up in arms, but it does demonstrate the principle that spying, even on coreligionists, has its place.

Conclusion: In recent decades, technological advances have seriously eroded personal privacy. Whether it’s airport scanners that peer underneath clothing or consumer databases collecting everything from employment histories to purchasing preferences or video cameras at ATMs and on traffic lights, technology has transformed personal, everyday activities into opportunities for collecting, sifting, and sorting personal data.

Whether Jewish tradition views this development as good, bad, or neutral is anybody’s guess. But it’s likely that a Jewish perspective would not consider this loss of privacy an evil in and of itself. Rather the Jewish view of privacy would probably judge these changes instrumentally by their effects on society. Does less privacy equal greater public safety or individual authenticity? If so, it may not be a problem after all. In a traditional Jewish discourse, invoking privacy as a magic word certainly will not do, not least because ancient Hebrew doesn’t even have one.”

Q&A

So final questions to consider: we may not have understood all of the geek stuff, may or may not have. We may or may not have understood all the Jewish stuff, but I have four questions that are at the bottom of page eight.

The first is, do we want to define an airport as a house? Is it somewhere where people sleep? Is it somewhere where people eat? Is it a residence? Normally, a residence is somewhere where someone’s lived for 30 days. Some people might (laughs). And does it even matter if it’s a residence or not, in coming up with a Jewish point of view. Do we understand x-ray technology as akin to a guardrail on a house? Is it something safety-related? I’m hearing yeses and nods of agreement.

So if we do understand that, do we also understand it as an intrusion of privacy? Or is it not an intrusion of privacy? Obviously, we heard some measures have been taken so people don’t see our naked bodies. But they are looking at our things. And as we just saw, there’s a lot of accuracy in looking at our things. I often say to Richard, “I don’t care if they look at my things, because what have I got to show,” right? But some people might see that as an intrusion of privacy.

And we heard an opinion, but we don’t have any halakhic opinion, on whether x-ray technology is permissible. But if we were to take all the Jewish texts that we looked at and all the information that Howie just gave us, would you – I’m interested to know – make an argument for it being permissible or not permissible? Richard, of course you have something to say.

Richard Madonna: So, many airports, in the United States and around the world, have hotel facilities included or attached or contiguous in some way. Also, many of them have clubs where you can lie in repose, and some of them even have showers, et cetera. And there are people who are stuck in airports through storms and other mishaps. So in a sense, you could know, but you could end up sleeping there. So I would think that part of it would fit in. That would be how I would look at it.

Linda Joseph: So you would argue that it is a house at some time, even if it’s a temporary house.

Richard Madonna: A tent would be a house, at this margin.

Linda Joseph: Right. But remember that a house has to be slept or eaten in for 30 days–

Richard Madonna: Well, that’s is constantly going on at airports!

Linda Joseph: All right, so it’s done in stages. Yes, Sally? Well, excuse me if you come up.

Well, I think that the individual needs are outweighed by the community needs – the needs for safety. And so in that case, I think that the airport needs to provide the safety to the general [public] and not to me as an individual. I’m willing to give up my individual privacy, and I think other people should.

Linda Joseph: So the community need, which we’ve made an argument for in our last text here, outweighs the individual need in this case. So we need a parapet, which is your x-ray technology, just to make sure that it’s safe. That’s your argument. Rich?

Richard Madonna: It seems the hang-up is the word “house.” And so, putting it in the context of when the scripture was written, public buildings per se, like an airport or like a governmental building, probably only amounted to a temple – some sort of public meeting place for services. So I think the idea of “house” has to be extended beyond scripture and traditional reform Judaism to fit with modern times. And therefore, I don’t see a real concern over saying “Is an airport a house?” It’s a public dwelling. It’s a public place, and scripture would seem to indicate that we should protect ourselves and keep them safe.

Linda Joseph: All right, so let me repeat for those that are online, because you are not microphoned. Airports aren’t known in biblical times. They know about a cowshed and they know about a portico and they know about a house. But this is a public building that is not known. So we could expand the concept of house to be any buildings that we are in. And therefore, there is an obligation of the owner of the house, whether that be the state or the government or whatever, to put in public safety, to put in that parapet, right, or that make sure that the ladder is not there or the biting dog or whatever it might be. And we would put things like guns and possible explosives into that category as something dangerous. And so we can enlarge that definition and say that Jewish law would argue that this is necessary, otherwise the person that owns the house, the state or the government, is liable if something is to happen.

Audience member: So you’ve asked us about how these texts – what these texts have to say – but I guess the first thing I would think of is, what else is there that would speak to this issue? And then it gets away from the issue of whether it’s a house. And the second Proverbs text, which says “a trustworthy soul keeps a confidence,”  that takes you to thinking about – you have to decide whether the airport system is trustworthy to keep the confidence. So Howie has certainly kept a lot of confidences in his presentation. So it seems to me that this is another thing that really is related and doesn’t get into whether it’s “house” or not.

Linda Joseph: Right. Okay, so that’s a fantastic point. We assume our TSA agents and the people looking at this technology are not going around saying, “hey, guess what I found today in so-and-so’s bag” – that they do keep a confidence of some kind. So there’s a level of privacy going on, that I’m assuming is part of the ethics [code]. So perhaps our privacy is not being invaded. I think if we were living in another place with different politics, some people might argue that their privacy is being invaded, though.

Well, it’s noon. I hope you learned a lot about privacy and learned about houses and parapets. Make sure your houses are safe, my friends.