Last week, video footage from a deadly police traffic stop was released. The footage was taken by the body-camera of the police officer who made the stop. Within hours the video was seen by thousands of people, all weighing in on the incident. The availability of video technology has made our world into a very different place.
In this article we will consider the halachic ramifications of this technology. Can testimony be delivered via video communications? Can a husband appoint an agent to give a Get, preventing his wife from being an aguna, via skype? Can milk be considered cholov yisoel if the milking was captured on surveillance cameras? There are two basic halachic issues with relying on video technology. 1) Is witnessing an event through artificial means considered seeing and hearing? 2) Videos could be tampered with. How and when does this detract from their reliability?
Is a Reflection Considered Seeing?
Rabbi Yaacov Chagiz (1620 – 1674) in Halachos Ketanos asks an interesting question. If witnesses saw a person commit a crime through a mirror, can they testify in Bais Din? Is seeing the reflection sufficient? He cites the Talmud in Tractate Rosh Hashana about the types of testimony acceptable to sanctify the new moon. The Talmud writes that if the witnesses saw the reflection of the new moon in water, their testimony is not acceptable. Rabbi Chagiz applied this to our case as well. Apparently, seeing a reflection is not considered seeing for the laws of testimony.
Rabbi Shmuel Abuhav in Dvar Shmuel and the Chid”a in Birkai Yosef are not as sure. They discuss if the Kiddush Levanah could be performed on the reflection of the moon in a mirror. Rabbi Abuhav cites the passage in Tractate Rosh Hashana that disqualifies the testimony of witnesses who only saw the new moon’s reflection in water. However, he wonders if the Talmud’s concern is only about the new moon. The new moon is a thin sliver and very difficult to visualize. As such, the sages were concerned that it became a bit distorted in the reflection. However, Kiddush Levanah is said when the moon is much more visible. Therefore, there is little room for error. As such, it is possible that seeing the reflection of the moon would be sufficient forKiddush Levanah. Nonetheless, he concludes that since this distinction is not clear, one should not make the blessing on a reflection.
Rabbi Abuhav’s approach is fascinating. He is entertaining the possibility that the Torah does not require actual seeing for testimony. Rather, the entire disqualification of a reflection is because it may be distorted. According to this approach he would view the case of Rabbi Chagiz in Halachos Ketanosdifferently. If the crime was absolutely clear in the mirror, perhaps Bais Din would accept such testimony. This could have a great impact on our question about the use of video for testimony in Bais Din. If the video is extremely clear and there is no concern of it being tampered with, perhaps it could be considered ‘seeing’ even in Bais Din.
The Mishpetai Uziel (CM 14) marginalizes the approach of Rabbi Abuhav and the Chid”a. He points out that the Rambam writes that seeing a reflection is disqualified because ‘this is not seeing’. The simple reading of the Rambam indicates that the Torah requires seeing the actual moon, not its reflection. He maintains that this is the mainstream approach. For this reason he writes that pictures or recordings are not valid testimony in Bais Din. While they may be accurate, the Torah requires the witnesses to have seen the actual situation.
Appointing an Agent by Telephone
In the laws of Gittin, a husband may give a Get to his wife through an agent. However, the agent must hear his appointment directly from the husband. A written appointment is usually not relied upon. With the advent of the phonograph and telephone, the question was raised if it could be used by the husband to appoint an agent. The Shaarei Deah was one of the first to address this issue. He points out that the Talmud considers voice recognition like seeing. This concept is called tvias ayin d’kol. Therefore, if the agent recognizes the husband’s voice, he should be allowed to write a Get on his behalf, even though he did not see him. The Marshag also takes this approach. The Bais Yitzchok, however, was concerned that hearing through the telephone may not be vivid enough to consider it to be tvias ayin d’kol.
Based on this discussion, a video call could be very helpful in giving a Get. A video call is far more real and clear than a crude phone call from the early 1900s. However, Rabbi Waldenberg in Tzitz Eliezer (10,47) was reluctant to rely on this unless there is great need. He points out that the Bais Yitzchok may require actually hearing the directive from the husband. Even a clear televised instruction may not be sufficient.
Cholov Yisroel & Video Surveillance
Rabbi Mordechai Gross discusses if video surveillance could be used to consider milk Cholov Yisroel. He points out that the Halacha does not require the Jewish person to actually see the milking. The Shulchan Aruch writes that if a Jew is sitting outside the milking parlor it is sufficient. The reason is because the Jew could stand up at any time and see what is going on. This type of deterrent, called mirsas, fear, is sufficient. Therefore, if the cameras are running all the time, and it is clear that they were not tampered with, it should be sufficient. Similar to the Jewish person sitting right outside the milking parlor, the mashgiach can view everything going on in the plant at any time through the video cameras. Rabbi Gross, however, is unsure if the mashgiach must actually view the footage or it is enough that he has the ability to do so in order to create a proper mirsas.
Rabbi Moshe Sternbuch (Tshuvos Vehanhagos 5,255), however, is concerned about relying on video surveillance alone. He maintains that the videos must be constantly reviewed by a mashgiach. It is only through the mashgiach viewing the video footage and verifying that no non-kosher milk was mixed in that the milk becomes cholov yisroel. Furthermore, it is possible that the sages only permitted the milk when the mashgiach is actually sitting nearby, not when he views it later on a video.
We can conclude that in areas that the Torah requires actual testimony, a video is not sufficient. However, it is possible that surveillance videos could create a proper mirsas for certain areas of Kashrus. Furthermore, it may also be beneficial in areas like appointing an agent for a Get. Likewise, in a monetary dispute if both sides agree, a Din Torah could be conducted through a video conference.
BAIS HAVAAD HALACHA CENTER