Hezzek re'iyyah, Big Brother, and you

Last Friday I listened to an NPR report on the lack of concern that many Americans have about recent revelations of government monitoring of domestic phone call records. In the report, Alix Spiegel referred to hezzek re’iyyah, a concept in Jewish law that Professor Jeffrey Rosen discusses in his book, The Unwanted Gaze. (The book, interestingly enough, was published in 2000, before the 9/11 attacks, the passage of the Patriot Act, and the creation of the NSA surveillance programs within the United States.)

In testimony before the Senate in 2000, Rosen described hezzek re’iyyah as follows:

This uncertainty about whether or not monitoring is taking place has a high social costs. The title of my book, The Unwanted Gaze, comes from a passage in Jewish law that describes the anxiety and inhibition that results when citizens are unsure about whether they are being observed without their knowledge. Jewish law, for example, has developed a remarkable body of doctrine around the concept of hezzek re’iyyah, which means “the injury caused by seeing,” or “the injury caused by being seen.” This doctrine expands the right of privacy to protect individuals not only from physical intrusions into the home but also from surveillance by a neighbor who is outside the home, peering through a window in a common courtyard. Jewish law protects neighbors not only from unwanted observation, but also from the possibility of being observed. Thus, if your neighbor constructs a window that overlooks your home or courtyard, you are entitled to an injunction that not only prohibits your neighbor from observing you through the window but also orders the window to be removed. From its earliest days, Jewish law recognized that it is not only surveillance itself, but also the uncertainty about whether or not we are being observed, that forces us to lead more constricted lives and inhibits us from speaking and acting freely in private places. [emphasis added] The consensus among medieval jurists, therefore, was that a window overlooking a common courtyard had to be removed even the individuals whose privacy was violated failed to protest.

I googled "hezzek re'iyyah" and found "The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions," an interesting paper by law professor Andrew Taslitz. In it he notes that the U.S. Supreme Court "generally, though not always, conceives of privacy as a cognitively driven issue, divorced from human emotion," and argues that this in incongruous with our actual experience of having our privacy violated. He proposes reconceptualizing privacy in such a way that allows us to retain a level of privacy even when in public, declaring privacy to be "more about civility, respect, intimacy, and recognition" than simple management of the risks of disclosure when venturing out into the physical--or virtual--world.

And with respect to government surveillance, Taslitz notes:

The implications for growing state surveillance into our lives are unattractive. If the means to surveil electronically the inside of the home become more widespread, then police viewing of our intimate activities may be possible without a warrant or reasonable suspicion. If tracking devices that monitor our movements on the street -- in cars, on foot, in stores, or at ATMs -- improve, then so does the likelihood of secret police monitoring of our lives. Our growing use of e-mail, the Internet, and online banking might expand the risk of government access to personal information. To be sure, political forces may eventually curb the worst abuses, but too many insulting personal invasions may happen along the way, and those with reduced political power may never gain protection against them.

It has been a long time since I've read 1984, but I'm thinking it's time to refresh my memory. A couple of interesting looks at how 1984 (and Anthony Burgess' The Wanting Seed) foreshadow contemporary times can be found here and here. I'll also reference a couple of passages here:

... practices which had been long abandoned, in some cases for hundreds of years — imprisonment without trial, the use of war prisoners as slaves, public executions, torture to extract confessions, the use of hostages, and the deportation of whole populations — not only became common again, but were tolerated and even defended by people who considered themselves enlightened and progressive....

With the development of television, and the technical advance which made it possible to receive and transmit simultaneously on the same instrument, private life came to an end. Every citizen, or at least every citizen important enough to be worth watching, could be kept for twentyfour hours a day under the eyes of the police and in the sound of official propaganda, with all other channels of communication closed. The possibility of enforcing not only complete obedience to the will of the State, but complete uniformity of opinion on all subjects, now existed for the first time.

Want to weigh in? Contact your senators.