Introduction: The Challenges of Global Tech Platforms
How ought society and law deal with the technology giants? And how should we conceptualize the relationship between these firms and their users? The Jewish concept of brit (covenant) can help legal scholars and society in general address this complex legal reality.
Contemporary democratic societies and the global economy as a whole face this multilayered challenge and multifaceted dilemma in a broad variety of contexts. Now referred to with various intimidating acronyms—FAANG, GAFAM, AAMG—huge information technology firms—Google, Amazon, Apple, Facebook, Microsoft, and, according to some, Netflix—are commanding almost unlimited economic and political power (possibly even greater than that of many mid-size sovereign states), which is a growing source of concern.Footnote 1 Also referred to as tech giants, these entities are dominating many aspects of the lives of individuals and societies while controlling a variety of digital services, such as search, social networking, cloud computing, online advertising, content sharing and delivery, and communications. They are also moving into additional key areas that they might dominate in the near future, such as banking, travel, and transportation. Given the breadth of their presence and their reach into so many aspects of contemporary life, it is no surprise that there is a steady stream of conflicts between these firms and end users. Moreover, the speed of technological change alone makes it hard for local governments to keep pace with—much less anticipate—these challenges through laws and regulations. Furthermore, tech-related disputes often result from decisions made at remote locations far beyond the control of many nation-states (especially when these states are not the United States or China).
These companies have risen to dominance in very distinct ways. Each firm has excelled at or achieved a first-mover advantage in a specific subset of the digital market, yet almost all are currently converging to compete at many similar junctures thanks to aggressive acquisitions. They are joined by other Western, medium-sized but nonetheless dominant players (Netflix, Cisco, Oracle) and rising Eastern giants (Tencent, Alibaba). Although very different, we refer to them all as the tech giants.
The nature of the relationship between these global firms and their users is unique. Although it is tempting to do so, these firms cannot be compared to nation-states, for the latter entities exercise geographical sovereignty over subjects that could be transformed to other spheres of power.Footnote 2 The tech giants’ source of power is far more difficult to name, for it entails market dominance, user consent, control over crucial resources, the assumption of public roles, access to troves of personal data, and more. And while these tech firms might seem to threaten the nation states in their existence, they are not really a viable substitute given their mostly virtual presence and international characters. Nonetheless, these firms can exercise substantial power and must be closely examined.
Even after setting aside the citizen-sovereign state regulatory paradigm as an option to address the tech giants, there is no shortage of potential frameworks to articulate the intriguing dynamic between users and firms. Scholars have discussed notions of trust,Footnote 3 fiduciary duties,Footnote 4 information custodians,Footnote 5 common carriers,Footnote 6 and even the antiquated laws of bailment.Footnote 7 There is also an abundance of theoretical and doctrinal concepts for justifying the limitation of the power of firms, such as competition (antitrust) law, data protection, or the firms’ reliance on contracts of adhesionFootnote 8 and unfair manipulation.Footnote 9 Alternatively, the firms are also considered to be taking upon themselves public roles and should be subjected to the standards of public law (thus limiting their ability to impede speech, engage in discrimination, and the like).
Most recently, the European Union has taken additional steps to rein in the tech giants by introducing the Digital Markets ActFootnote 10 and the Digital Services Act.Footnote 11 These laws are the most ambitious attempt to date to regulate the tech giants. As of this writing, these massive pieces of legislation have not yet been finalized, and their full entry into force is still several months away. Yet their regulatory trajectory is clear: an attempt to single out very large and dominant tech companies and subject them to strict scrutiny, substantial burdens, and the risk of high fines. Indeed, both regulatory frameworks include specific categories that, to a great extent, address the tech firms we discuss. Article 3 of the Digital Markets Act includes a definition of gatekeepers that refers to tech firms that are, among other things, in an entrenched position of power. The regulation sets high thresholds of market valuation and number of users, clearly targeting the tech giants. Similarly, the Direct Services Act applies specific, far-reaching regulations to “very large online platforms” (designated so according to Article 25) with significant impact and to very large search engines. Size is defined primarily by the ability to reach 10 percent of the European Union’s population. Again, the entities defined in the Digital Services Act will most likely include the tech giants discussed. The focus of the Digital Markets Act is on limiting a tech firm’s ability to abusively harness its market power and thus prohibits combing data resources. It also regulates issues related to competition such as bundling, portability, and preinstalled services. The Digital Services Act focuses on harmonizing various European Union laws regulating various forms of illegal content. Furthermore, it addresses transparent advertising (especially when tailored) and disinformation monitoring and limitation. It draws out a liability exemption for content insofar as the intermediary had no knowledge of the illegality. It also introduces duties to inform when posted information is removed and restricted. The proposed legislation includes additional rules on transparency regarding the algorithms running recommendation processes while prohibiting the use of specific categories in the analysis, and various manipulative practices.
Nonetheless, legislators, regulators, thinkers, and scholars are constantly seeking additional paradigms to conceptualize the relationship between tech firms, end users, and local governments, which still eludes a simple definition.Footnote 12 Therefore, the desired conceptual framework is expected to contribute to the understanding of the nature of legal and democratic relationships at this time, focus the discussion on key conceptual points, and assist in pointing toward proper conceptual and regulatory responses. Accordingly, we suggest a relational paradigm from the realm of Jewish law and traditionFootnote 13—the concept of covenant—in hope of promoting these objectives. The title of our article, “What Is the Juxtaposition between Silicon Valley and Mount Sinai?,” alludes to a well-known Jewish-Hebrew idiom. The Talmudic sages,Footnote 14 in their commentary on the book of Leviticus (Sifra) remark upon the biblical verse “And the Lord spoke unto Moses in Mount Sinai” (Leviticus 25:1), and question the textual nearness of the law of Shemitah (Sabbatical year) vis-à-vis the revelation at Mount Sinai. The Sages ask, “How do the case of Shemitah and Mount Sinai juxtapose?” (mah inyan shemitah le-har sinai) and provide several responses. This Talmudic question has morphed into shorthand for wondering about the possible relationship between two seemingly unrelated issues. In this article, we present such an inquiry regarding the relationship between contemporary problems of law and technology, and Jewish tradition.
Covenant and Political Theology
The relationship between tech giants and their users seems categorically different from other historical and contemporary interactions between firms and their customers or clients. Indeed, for centuries, multinational companies have had impact on daily life. Some have accrued great wealth and political influence, which has even led nations to war in a move to protect these firms’ interests. Nonetheless, the current technology-based relationships are unique on several levels, thus calling for a novel paradigm.
The common conception of technology and of tech giants as omnipresent, omniscient, and omnipotent reflects their popular image as godly or divine.Footnote 15 What exactly divinity means, in terms of political theology, however, is far from simple. Though people tend to view God as a dictator, the concept of divine sovereignty in Jewish tradition portrays God rather as caring and relational.Footnote 16 This Hebraic political theology deeply challenges the dominant paradigm of Carl Schmitt.Footnote 17 Regardless of the critique against Schmitt,Footnote 18 his authoritarian approach remains highly influential in legal and political studies.Footnote 19 This leads us to covenant, a concept that has proven resilient and sustainable and is worth exploring in the present context. As we explain below, the biblical idea of covenant provides a categorically different notion of relationship between governor and the governed.
The concept of covenant is foundational in Jewish law and tradition.Footnote 20 However, for various reasons, the concept of covenant is not dominant within global contemporary philosophical and ethical discourse. When considering a relationship between God and human subjects, we are tempted to envision a relationship between a commanding divine entity and a mortal one that merely obeys. This, however, is far from being the dominant paradigm in Jewish thought. The covenant is predicated on a relationship that is premised on dialogue. As such, covenantal relationality involves agency, reciprocity, and explainability.Footnote 21 Even though there clearly is a stronger party within the Judaic notion of covenant (that is, God), instructions by the governing side are usually conceived as explainable and in this sense transparent. For this reason, divine command morality is rare in Jewish tradition.Footnote 22 Therefore, we find the concept of covenant worthy of further exploration in the technology and policy context.
Tech Giants vis-à-vis Users: Structural Legal Challenges
The Problem of Bigness: Old News Is Still News
Why do the tech giants dominate the global news cycle and present numerous challenges to multiple governments? While the following four issues are not necessarily unique to these specific entities’ roles, together they contribute to the alarming power of these firms:
First, the large tech firms are multinational entities, almost exclusively based in the United States (with a second generation of tech giants rising from China). Yet the users are spread worldwide. It is quite common that in specific regions outside the United States merely one tech giant is in a position of substantial market dominance.Footnote 23 Therefore, individuals are, at times, subjected to a foreign legal entity, whose leaders are beyond the reach of the individual’s jurisdiction, rendering many of the rules set forth in their own state irrelevant or of limited impact and easily worked around.
Second, these firms are powerful entities with considerable political force and influence that is boosted by substantial lobbying, political contributions, and the hiring of former governmental officials. The tech giants are among the world’s most valuable corporations and have made remarkable growth even in times of global crises—as evident during the COVID-19 pandemic.Footnote 24
Third, these firms have a strong grip on the formation of social discourse. Indeed, in the past, conglomerates exercised similar power by influencing and even controlling the press and media. Yet the fact that some of these firms are the actual discourse platform that they can control seamlessly and without being noticed makes this concern far more acute.Footnote 25 In addition, and as opposed to the media giants of the past, the tech giants have been late to embrace their important social role and the responsibilities that come with their newly vested powers,Footnote 26 and regulators were similarly slow to apply these responsibilities to them.
Fourth, the power disparity between these firms and individuals can lead to devastating outcomes for those who cross these firms’ path.Footnote 27 The firm can banish individuals from their community, render them forgotten and unfindable, and lock them out of their important memories and belongings—and all this without engaging with them physically.Footnote 28 Again, there is nothing substantially novel with the seemingly futile battle between powerless individuals and an ever-powerful firm. Yet this noted concern is exacerbated given the fact that the interpersonal and civic discourse is more than ever dependent upon these sophisticated technological platforms. The tech giants, in other words, are virtually everywhere (pun intended). On the other hand, users would face substantial hurdles if they choose to exit the relationship with the relevant firms. The firms cannot be easily unilaterally abandoned and are reluctant to delete content and information pertaining to users even after asked to do so.Footnote 29
Some of these concerns, and especially the last one, quickly bring much older religion-based establishments and relationships from the premodern era to mind. The ability to punish by excommunication, ostracism, and shunning has long been part of the soft power vested with religious organizations and hierarchies. As we explore below, perhaps such extensive force should be countered with a legal conceptualization that takes into consideration humanist (or pragmatist) religious ideas.
Unique Concerns
Beyond the newer versions of the older concerns, the enhanced digital environment brings with it four novel worries.
First, in many instances the relationship between firm and user is premised on an apparent form of consent,Footnote 30 which results (and is derived) from agreeing to the relevant terms of use (more on the nature and failings of such consent, below).Footnote 31 This is as opposed to the historical relationship with global vendors and manufacturers whose products were merely purchased in a one-time transaction, sometimes indirectly (thus eliminating any formal contractual linkage between the seller and buyer). In other words, the tech giants are in privity with billions of humans—privity that leads, for both parties, to expectations of mutual rights and obligations.Footnote 32
Second, these relationships are ongoing and often tightly controlled and even customized, featuring specific terms or experiences for specific users—again as opposed to the often one-time purchase of goods from a global and dispersed merchant or service provider. The noted trend of customization is a tectonic shift from the uniform (and in this regard, blind) treatment that has dominated the economy since the industrial revolution.Footnote 33
Third, the relationship between tech giants and users is such that it allows the firms to collect vast amounts of personal information about every user. Using current advanced capabilities of data analytics, such personal data can be stored, analyzed, and commodified. The knowledge derived from such analyses can be used to generate a more substantial interaction between the firm and existing and prospective users. Furthermore, the data can be used nefariously—for launching discriminatory pricing regimes, attempts to manipulate users, or even to prejudicially exclude them.Footnote 34
Fourth, in some of the settings at the basis of these relationships, the technology firms argue that they should not be found liable for potential harms derived from their actions, as these constitute the mere intermediation of the actions and speech of others. According to this argument, the tech giants are common carriers,Footnote 35 platforms or facilitators that should not be held accountable for the wrongs resulting from the usage of their platforms. Below we take a closer look at three crucial legal issues that are derived from these four concerns and are unfolding in various academic and policy contexts: (1) entering, exiting, and consent; (2) tailoring, censoring, manipulation, and opacity/transparency; and (3) intermediation.
Entering, Exiting, and Consent
As explained, the interactions with tech firms are premised on a specific text: the terms of use. These terms of use constitute legal documents presented to users at central junctures and are presumed to be read, understood, and accepted. That they are read, understood, and accepted is a well-known legal fiction.Footnote 36 Few users indeed read these forms of documentsFootnote 37 or have the capability of understanding them.Footnote 38 And these insights are not lost on the tech firms, who often pack these legal documents with one-sided terms, waivers, and disclaimers. Naturally, there are some outliers—firms that invest time and money in crafting readable and accessible termsFootnote 39—and settings in which sophisticated parties closely read the relevant contracts.
The terms of use are often supplemented by additional documents. These might include privacy policies, community guidelines, and codes of conduct that map out permitted and prohibited forms of behavior to various degrees of clarity and abstraction. With very few exceptions, the contractual language in these documents is drafted by the firm’s lawyers.Footnote 40 The firms indeed introduce timely changes to these documents, yet these are driven mostly by specific legal requirementsFootnote 41 rather than users’ preferences. The nature of the noted legal and technological architecture allows firms to argue that the entire user experience is governed by the agreements and subjected to contract law. This has led to an abundance of issues and conflicts.
An initial point concerns the formation of the contract—especially regarding the autonomy and capacity of the users upon its entry. This point of contention relates to the act of acceptance or assent to the agreement between users and the internet platforms—the most basic prerequisite for contact formation. These notions are also related to that of consent, which is required under laws governing the processing (a term that includes, among other functions, collection, analysis, and usage) of the personal information that is often collected as part of this interaction.Footnote 42 Obtaining consent is a popular (though certainly not exclusive)Footnote 43 measure to assure such processing is lawful.
In all these contexts, legal theory and practice have set standards that identify which online behaviors provide sufficient evidence of accepting the contractual language and which forms of disclosure prior to such acceptance subject users to the disclosed terms. In the context of general contract law, the notion of contractual acceptance and assent could be established on the basis of either the objective or subjective theory of contracts. The subjective theory of contracts is premised on the advancement of the individual’s autonomy and would thus call for the assurance of the individual’s meaningful assent to the contractual framework. However, contract law, especially in the United States is dominated by the objective theory of contracts, according to which the external appearance of consent should establish contractual formation. This perspective is driven by the economic consideration of promoting commerce and allowing for reliance on external cues. It therefore leads to a low threshold for establishing contractual assent in commercial settings.Footnote 44
In the context of data protection and the transfer of personal information, the nature of appropriate consent sharply differs among legal regimes. The European Union’s General Data Protection Regulation calls for consent that is (among others) informedFootnote 45 and at times “explicit.”Footnote 46 In the United States, rules regarding such consent are less clear, yet they are considered to be more lenient than those of the European Union.Footnote 47 Yet even the European Union’s data regime allows firms to present users with extensive data usage policy disclosures that users reluctantly and sheepishly accept. The best example of this dynamic is that of cookie notices, which present users with the option to agree to online tracking prior to accessing a website, yet are generally ignored by users, rendering the entire scheme somewhat of a farce.Footnote 48
Such standards of assent are conceptualized in various technological practices that manifest consumer agreement. Consider the concept of clickwrap (a term coined in the sales of software on analogy with shrink-wrap), according to which the act of checking a box (or clicking a button) constitutes consent to a lengthy text presented online. These concepts and others articulate—some might say, fictitiously—the process of formulating an agreement that includes language users might not have reviewed (or even had a chance to do so). To some extent, the user’s ability to rescind the contract after the fact has led courts to accept contracts formulated in a pay-now-terms-later process in which terms accessible only after formation are nonetheless enforceable given the ability to reject the contract after the fact.Footnote 49
In addition to formation, courts worldwide are also grappling with the enforceability of these contracts, especially regarding clauses setting jurisdiction and choice of law and clauses addressing dispute resolution.Footnote 50 Therefore, contract law generally—and the law of standard form contracts in particular—provides an important context for governing these digital spaces and for understanding the limitations of power. Yet it is questionable whether contractual doctrines such as “unconscionability” and “contra proferentem”Footnote 51 are suitable and can successfully govern the abundance of issues here unfolding, especially the courts general reluctance to intervene.Footnote 52
As opposed to entering the relationship, legal issues also arise regarding its exit and termination. First, consider the platform’s ability to unilaterally terminate the agreement. Firms have generally reserved the right to remove users by drafting broad provisions. These provide the platforms with substantial discretion to unilaterally terminate accounts and leave users with limited redress. In response, law and policy have applied a variety of measures to regulate these contractual aspects. Courts have begun to intervene in instances in which termination by the platforms seemed to be unfair, arbitrary, or constitute an abuse of power—yet have chosen to refrain from interfering in many other high-profile situations. For instance, when Wikileaks was banished from Amazon Web Services, the world’s leading cloud provider, hosting facilities (most likely because of pressure from the U.S. government), its options for legal recourse were extremely limited given the broad termination clauses in its hosting agreement.Footnote 53
On the other hand, consider the user’s ability to unilaterally exit. While in most cases ceasing to use the platform is simple (as these services usually do not require membership fees), completely removing one’s digital footprint from the systems presents more of a challenge. Maximillian Schrems famously launched a multiyear battle against Facebook to achieve his removal.Footnote 54 The European Union has introduced the “right to be forgotten” to promote this objective as well.Footnote 55 The difficulty to exercise an effective exit might have a substantial impact on the ongoing relationship between the parties even if there is no dispute in sight.Footnote 56 It is therefore an important remedy, and its limitation constitutes a substantial impediment to the users’ rights.
Beyond the noted and somewhat specific doctrinal questions are broader queries as to the adequacy of contract law and theory to appropriately regulate the complicated relationships here unfolding. For instance, Margaret Radin argues that contracts—especially those mostly applying a “boilerplate” form should not be used to relinquish the individual’s basic rights.Footnote 57 In the context before us, this pertains to speech-and-association-related rights.Footnote 58 She further notes that contracts should be a result of a “dialogue” between the parties that is absent here.Footnote 59 Similarly, Cass Sunstein explains that issues related to civic behavior and human rights should not be governed merely by markets and commerce but by laws and government. In other words, people should decide on these crucial issues in their capacity as citizens and at the ballot box rather than through their capacities as consumers. As consumers, individuals are not necessarily attuned to broader social concerns but are focused on maximizing their financial resources in these relevant transactions.Footnote 60 Thus, these arguments state that the paradigmatic reliance on the contractual language of the terms of use to govern the conduct of both sides of the agreement is an unacceptable compromise and should be set aside in favor of other rules and norms.
Yet another strand of thought challenges the logic of reliance on the lengthy contract to regulate the relationship between the parties from a very different direction. As almost no one reads and understands these contracts, the firms should be judged based on their actions, and policed by market forces, information flows, reputational damages, and specific regulation. Reliance on the terms of use should be treated as a fictitious notion to be abandoned.Footnote 61 To some extent, contractual terms should be considered as merely attributes of the relevant product or service and should be treated as such.Footnote 62
Tailoring, Censoring, Manipulation, and Opacity/Transparency
The interface between users and the tech giants unfolds in a digital environment. This leads to at least two of the unique outcomes noted above: the opportunity to collect vast amount of personal information, and the ability to control and even customize the user’s interface. Integrating these two elements generates a reality that could be either a blessing or a curse. It could prove highly beneficial if the firms choose to use it to tailor and deliver information that they believe the user would find most helpful and relevant.Footnote 63 It also allows for creating an environment that users will find friendly and safe for their discourse. Yet this ability could prove highly detrimental if used merely to promote the interests of the platforms (and those of their affiliates and possible sponsors). This tension unfolds in a variety of contexts, yet it is most prevalent in the policies of the social networks regarding removing various forms of content (or failing to do so),Footnote 64 and that of tailored marketing and advertising, while possibly taking advantage of the users’ weaknesses.Footnote 65
One of the key responses to the fear of manipulation is providing greater transparency concerning the way these firms collect personal data (through the specific website and elsewhere), analyze, and utilize it. Similarly, firms are required to provide explanations (and thus produce or satisfy the moral-legal requirement of explainability) for the outputs that users receive and experience.Footnote 66
The calls for transparency and explainability have unfolded in various contexts. Data protection laws have led the way.Footnote 67 In addition, consumer protection laws as well as others (such as election or credit rating lawsFootnote 68 in some instances) have moved to require the providing of greater insights to algorithmic processes. New proposals and actual laws focused on decision-making processes powered by artificial intelligence and machine learning) also prominently rely on providing users with greater insightsFootnote 69 as to the inner workings of the automated process, at times aspiring to break open the so-called black box. At the same time, some firms have responded voluntarily. For instance, Facebook has introduced measures to promote these objectives such as publishing transparency reports, the firm’s code of conduct, and founding an oversight board.Footnote 70 These steps and others possibly limit the ability to manipulatively remove content and push specific ads, as these actions are now open to public scrutiny.
Unsurprisingly, transparency requirements meet substantial pushback. Firms are reluctant to reveal information as to their inner workings. They argue that sharing such data might compromise trade secrets, thus strengthening their opponentsFootnote 71 and enable the gaming of the algorithm. Thus, it would have an impact on the firm’s incentives to invest in such technological processes and on the accuracy and overall fairness of the process’s outcomes (given the ability of some users to effectively game it and thus sidestep crucial filtering mechanisms).Footnote 72
Firms will further argue that many of the processes driven by artificial intelligence and machine learning are highly automated, complex, and ever-changing. Therefore, providing meaningful explanations is almost impossible, and in any event will require a compromise in terms of the process’s accuracy and overall efficiency. Note that these arguments will not prove convincing should society consider the right to receive a meaningful explanation to be fundamental, and thus justify substantial changes in the platform’s process. Also, they will not hold if receiving such explanations is considered important to enhance the individual’s autonomy, especially in situations where crucial decisions about her or him are being made beyond their control. Thus, society is still struggling to figure out what weight to attach to explainability requirements, how they are best justified in this context, and how must they be balanced against other interests.
Mere Intermediation?
In some of their key capacities, the tech giants have chosen to reflect calls for liability or regulation by claiming that the negative implications resulting from their actions are derived from the actions of others. Consider Google’s early responses to search outcomes (such as for terms with the word Jew),Footnote 73 ads served (stereotypical ads to minorities), and Facebook and Twitter’s response to attempts through their systems to interfere in elections in Germany, the United Kingdom, and the United States.Footnote 74
In such instances and others, it is other users who create and upload content that harms others, incites violence, or violates copyright. It is an external force that uses the platform’s services to circulate prohibited materials or market using negative stereotypes. And it is others who nefariously use the platform to undermine democratic processes such as elections and even public discourse. The tech giants merely provide the platforms that many choose to use for good and very few elect to abuse. Thus, one might argue that it is not the tech giants that we must blame for the mentioned outcomes but these users. Furthermore, placing extensive liability on them will choke their incentive and ability to innovate. It would also motivate them to extensively censor and chill the speech they are facilitating, given the potential for liability. Some of these arguments are even reflected in the law. In the United States, Article 230 of the Communications Decency Act provides broad immunity to platforms from the speech harms they facilitate.Footnote 75 When threatened with the prospect of liability, the tech giants invoke this crucial law and praise the freedom it provides them with.
A vast corpus of scholarship and policy analysis has closely examined the extent to which online intermediaries should be held liable for their intermediation efforts, as well as what form of diligent moderation is required to escape such liability. Yet, again, beyond the somewhat technical discussion is a substantive/normative one—one that involves establishing the moral responsibility entities should have for the consequences of their actions, even if merely caused via intermediation and moderation (or lack thereof).
The Challenge of Incommensurability
The conflicts of miscommunication between tech users, tech firms, and state regulators do not unfold in a legal and intellectual vacuum. They occur within an atmosphere in which there is a widespread feeling that diverse human beings (and their preferences) and different human cultures have nothing in common. The wider cultural background for that is the fractures that accompany modernism: from the late nineteenth century’s “death of God” thesis and the crisis of values heralded by Nietzsche to the cultural fragmentation of the twentieth century (which was amplified by massive immigration waves) and relevant media processes. All these had amplified the problem of incommensurability, or the lack of a common axiological ground between individuals, cultures, and societies.Footnote 76 This axiological diversity only deepens when facing the tremendous similarity of technological means: most human societies are enjoying the benefits of the same internet and digital technologies. However, sharing the same technological tools does not necessarily pave paths for shared legal resolutions.
In the legal context, as Sunstein has written, “Incommensurability occurs when the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”Footnote 77 The phenomenon of human diversity is generally a positive one, yet it has downsides: the challenge that numerous modern societies (let alone humanity as a whole) experience is a deep inability to achieve broad societal agreements on various foundational moral and legal issues. Many scholars try to meet the challenge by deploying ideas akin to John Rawls’s notion of “overlapping consensus,”Footnote 78 but the multicultural setting makes it utterly challenging to open and fruitfully conduct the conversation that can lead to such consensus.Footnote 79 This condition of incommensurability is one of the main challenges that underlie contemporary clashes between tech users, tech firms, and state regulators.Footnote 80 In the condition of incommensurability, as the public’s preferences greatly vary regarding whether specific matters could be governed by contract and whether personal information and control could be exchanged for online services, it is harder to avoid conflicts by means of constructive discursive interaction.Footnote 81
To the problem of incommensurability we may add another initial concern within modernist discourses. As Erich Fromm had argued, such discourses feature some inclinations toward radical individualism on the one hand, and dictatorship on the other.Footnote 82 Both are predicated upon the categories of necessity and contingency, notions that rule out the (typically pragmatist) category of the possible, which is vital for democracy that is predicated on the trust in the ability of humans to act positively in the not-yet arrived future.
Can the Hebraic idea of covenant prove helpful in addressing these legal-ethical concerns and the moral limitations they require vis-à-vis the incommensurability of our age? The idea of covenant includes some pragmatist, relational, middle waysFootnote 83 that appealed to the founders of modern democracy, and thus it merits our scholarly attention today.
The Hebraic Idea of Covenant and Its Explication in Jewish Law
What Is between the Disciplines?
Why should we turn to religious and metaphysical notions when dealing with secular challenges of law and policy?Footnote 84 Is religion an obstacle for human solidarity, or could it be its catalyst? If religious traditions are not conversation stoppers,Footnote 85 but rather relate deeply to virtue ethics, and are worthy of consideration (as various scholars contend),Footnote 86 considering Jewish tradition should be a viable option. Rabbi Jonathan Sacks held that religious traditions are an indispensable resource for a universal ethics:
Above all, as Francis Fukuyama … points out, it was religion that first taught human beings to look beyond the city-state, the tribe, and the nation to humanity as a whole. The world faiths are global phenomena whose reach is broader and in some respects deeper than that of the nation state.
Judaism is one of those voices. The prophets of ancient Israel were the first to think globally, to conceive of a God transcending place and national boundaries and of humanity as a single moral community linked by a covenant of mutual responsibility (the covenant with Noah after the Flood).Footnote 87
By considering the contribution of covenant to the scholarship of law and technology, we assume that pragmatist (as distinct from fundamentalist) religious ideas have the potential of widening our moral scope, rather than narrowing it.Footnote 88 We propose that the idea of covenant may help in rehabilitating interhuman trust amidst a fragmented world and offer a blueprint for doing so. After the collapse of the presumptuous universalist ideologies of modernism (the major –isms, such as communism, capitalism), it is worth noting that the covenantal vision by no means implies that human differences be overcome or eliminated.Footnote 89 As Sacks writes, “We are not yet in sight of a global contract whereby nation states agree to sacrifice part of their sovereignty to create a form of world governance. That is a distant prospect. Biblical theology, however, suggests an alternative, namely a global covenant. “Covenants are more general, moral, and foundational than contracts.”Footnote 90 If, as Robert M. Cover thought, there are in Jewish tradition some ideas that are relevant even to modern secular law,Footnote 91 the idea of covenant can be a candidate for providing deeper reflection on contemporary contractual theories that often have only a minor binding moral force.
In recent years, scholars of Jewish law and technology have promoted the notion that Jewish tradition has much to contribute to the tech policy discussion.Footnote 92 In view of these notions, the idea of covenant in Jewish (or HebraicFootnote 93) tradition may contribute to deliberating the complex problems of tech users vis-à-vis tech firms and regulation. Here, we follow José Faur,Footnote 94 Suzanne Last Stone,Footnote 95 Roberta R. Kwall,Footnote 96 and other legal scholars who emphasized the covenantal qualities of Jewish law, namely its humanistic and fallibilistic (sensitive to particular life conditions and to past mistakes) qualities.Footnote 97 This jurisprudential quality assists in considering the widely discussed phenomenon of the collapse of interhuman and legal trust in the context of technology users, tech corporations, and state regulators, and the ways this trust might be rehabilitated, through common effort of world religions and cultures.
Covenantality: Biblical and Post-biblical Characteristics
Covenant is a biblical idea, which has some background in Near Eastern cultures—Ḥittite, Mesopotamian—in the vassal treaties of Assyria, and more.Footnote 98 Similar to such political or international treaties, the relationship between God and the people of Israel was portrayed as asymmetrical. But different from such treaties, the stronger side in the biblical covenant (namely, God) is deeply interested in the physical and moral well-being of the weaker side. Indeed, as we learn from the frequent instruction to care for and love the orphan, widow, and stranger (Deuteronomy 10:18 and dozens of other instances in the Pentateuch),Footnote 99 the Hebraic covenant stresses that not mere force but care should govern social relationships.Footnote 100 Based on the Hebrew Bible, covenant became an overarching concept in early Jewish tradition, which remained influential in later Judaism (after going through several modification and conceptual adjustments). We suggest defining Jewish covenantality as comprising responsibility, reciprocity, and reasonability.
Covenantality enjoyed a renaissance within twentieth-century American Jewish thought, and our conceptualization is clearly influenced by this renaissance. A main proponent of the idea of covenant is Rabbi Eugene B. Borowitz,Footnote 101 who accounted for its affiliation with the modern democratic ethos. Another proponent is Rabbi David Novak, who in his book Covenantal Rights highlights the connection between covenantality and sociality.Footnote 102
We also note the contributions of David Hartman,Footnote 103 Daniel J. Elazar,Footnote 104 Irving (Yitz) Greenberg,Footnote 105 and Alan L. Mittleman.Footnote 106 Their covenantal sensitivities emphasize the elements of responsibility, reciprocity, and reasonability. In addition to its foundational role in Judaism, the concept of covenant was influential in the development of Western democratic ethos, in nourishing the enlightenment and federalist humanist trajectories,Footnote 107 and in human rights discourse,Footnote 108 which in their turn, were taken seriously by Jewish sages.Footnote 109
The Hebraic Covenant: General Characterizations
In general, covenant is a legal agreement that defines a relationship between two parties. There are, obviously, various forms of covenants, including those between equal parties and those between asymmetric ones. The dialogical temper of covenantal thinking in Jewish tradition is introduced by two facts, linguistic and axiological. First, as Sacks observed, the English verb to obey has no clear equivalent within the early Hebrew language. When the biblical God instructs Israel to “hear,” it means being able to challenge oneself and receive a reasoned moral voice.Footnote 110 Second, the dominant model of divine command morality, according to which morality is fully dependent on God’s command and on the arbitrary divine will (a theory that is prevalent in Christianity and Islam), has only a minor place in Jewish tradition, as Avi Sagi and Daniel Statman have observed.Footnote 111 The outcome of these sensitivities in Jewish tradition is a thick concept of both interpretation and the phenomenon of dispute,Footnote 112 which paves the way for a moderate pluralism.
The following taxonomy of the idea of covenant is indebted to Rabbi Ḥayyim Hirschensohn, a modern pioneer of thinking about Judaism and modernity through the covenantal prism.Footnote 113 Hirschensohn’s account of biblical covenants appears in his Elleh Divrei haBrit (these are the words of the covenant), where he analyzes the unfolding of biblical covenants: from the universal Noachide covenant with humanity as a whole (Genesis 9:1–7) and its rainbow symbol,Footnote 114 to the particular-national Israelite covenant (Exodus 20:1–23).Footnote 115 These covenants (the Noachide and the Israelite) are not mutually exclusive, but rather complementary and based on care for all human beings and tolerance toward other civilizations.
The biblical covenant is formulated between and assented by God and human beings, who are fallible (but not fallen Footnote 116). The possibility of sin or moral decline, in addition to the possibility of divine repentance, create the possibility, if not the necessity, of renewal and amendment of earlier biblical covenants. This partnership between God and humans is predicated on the biblical notion of imago dei, namely the likeness (however partial) between God and humans, all of which are created in the image of God.Footnote 117 This point is crucial: the nearness of God (Deuteronomy 4:7) gives the biblical covenant its unique traits that seemingly could not exist between humans and an extremely transcendent deity.
In early Jewish tradition, the constitution of covenant was not a one-time event (at Mount Sinai), but rather a process of covenant making, re-navigating, and reaffirming. This process is documented throughout the Pentateuch and later in the books of Joshua, Samuel, Kings (in the days of Kings David, Solomon, Josiah, and so on) and to Ezra and Nechemia (see Ezra 10:1–44; Nechemia 13:1–31). The biblical idea of covenant has an aspect of election or national chosenness, but this election is predicated primarily on a commitment to fulfilling the divine moral vocation, rather than mere privilege. As part of that, the earth and heaven are not only testifying in the biblical covenant (Deuteronomy 32:1–52) but also depicted as benefactors and punishers—depending on the deeds of the Hebrews.Footnote 118 It is noteworthy that Christianity had originated as a renewal of the biblical covenant,Footnote 119 based on biblical verses such as Jeremiah 31:30–32, which speaks of a “new covenant.”Footnote 120 In this regard, Christianity is a product and continuity of the biblical covenantal ethos itself.Footnote 121
What is the legal import of the covenantal ethos? Does it enable legal flexibility, or does it mandate a form of originalism? As José Faur has contended, the covenant puts much weight on the side of the interpreter, whose moral discretion is validated by the covenant.Footnote 122 In the Sinaitic covenant, the subjects of the law have a profound role in interpreting and reshaping the very conditions of the religious contract (that is, covenant) by which they are obligated. Footnote 123 Hebraic covenantality holds human beings highly credible. The covenant is thus a form of deep contractual agreement between two parties by which they take upon themselves mutual responsibility. The centrality of the covenant in the Hebraic ethos is also recognized outside the circle of Jewish legal studies.Footnote 124
The Possibility of a (Relatively) Voluntary Entry and Exit
Although the requirements of the Hebraic covenant are demanding, the right to exit or opt out is a real possibility. Even though the biblical covenant is by no means liberal in the modern sense, it involved many volitional elements in terms of entry and exit. If a person wanted to join the Jewish people (as Ruth the Moabite did)Footnote 125 or to exit the covenant (as many Israelites of the northern tribes did when assimilated in Assyria: see 2 Kings 17), they could do so. To be sure, the Hebraic covenant is very explicit about who is the stronger side and about the priority of goodness over evil deeds,Footnote 126 but the choice is ultimately left to human beings to make.
Because of the covenantal recognition of human imperfection, interpersonal rebuke has a vital role in Jewish tradition and in the formation of its discursive character.Footnote 127 Where dissatisfaction increases and turns into an overarching resentment, human beings may quit or exit the covenant, by joining (or assimilating into) another religion or nation. To be sure, joining a social group or leaving it is never a simple task. In every group of belonging (such as a family or a nation), joining or exiting is, in most cases, complex emotionally, financially, and technically. The covenantal setting is no different.
Based on the relative voluntariness of the biblical covenant, later covenantal thinkers emphasize the indispensability of consent. Footnote 128 This observation is inherent in Jewish tradition, and for this reason, the Sages were troubled by the seeming imposition of the Torah on the Israelites at Mount Sinai. This concern is not merely external to the Hebrew Bible, as we learn from the reparative revelation to Elijah at Mount Sinai (1 Kings 19:8–12), which presents a “still small voice,” alluding to the former, forceful revelation at Sinai. The Sages were similarly concerned by the relatively passive role of the Israelites at Sinai and their consent to rules they could not fully understand at the time. The Sages consequently claimed that the Israelites reaffirmed their covenantal commitment later in the days of Queen Esther in Persia, in the early Second Temple period.Footnote 129 The import of such covenantal theological normativity for those who remain loyal to the covenant, and to the learned sages more particularly, goes as far as the possibility of disapproving God’s laws,Footnote 130 or suspending divine law, when moral concerns are at stake.Footnote 131 Such hermeneutical veto is an authentic expression of the space left to human reasoning by God in the covenantal ethos.
Relational Aspects of the Covenant
Clearly, the covenant between God and his people was asymmetrical and not egalitarian in the modern sense. However, the Hebraic covenant emphasizes commitment, partnership, and mutuality: “I will be ever present in your midst: I will be your God, and you shall be my people” (Leviticus 26:12). The biblical God is not an arbitrary (and surely not a hostile) sovereign, but displays consistent game rules by which he plans to abide: “If you follow my laws and faithfully observe my commandments. I will grant your rains in their season, so that the earth shall yield its produce and the trees of the field their fruit” (Leviticus 26:3–4). Therefore, when humans feel that God is violating his promise for a fair retribution, resentment arises, which the Bible initially reaffirms (as in the book of Job).Footnote 132 This biblical portrayal of a comprehensible world is perhaps what leaves room or provides a mode, for the high degree of autonomy that we find in Jewish law.Footnote 133
To be sure, there are important transformations in post-biblical Judaism. The end of the biblical prophecy era does not mean that God ceases to function as a partner, nor that he ceases to be the object of prayers and Torah study. Yet, the more intimate and immediate dialogue found in the Hebrew Bible is transformed into the interpersonal discourse of the beit-midrash (house of study)—that is, to the exegetical activity of interpreting the sacred texts.Footnote 134
Covenantal Principles: Responsibility, Reciprocity, and Reasonability
In light of this review of the intellectual-historical seating of the concept of covenant in Jewish tradition, below we conceptualize with a focus on its three axiological components: responsibility, reciprocity, and reasonability.
Responsibility
Both parties to the covenant, God and human beings (the Hebrews in the Jewish case), are considered moral agents who are being held accountable for their deeds vis-à-vis the duties and principles of the covenant. The power asymmetry between the parties—God is clearly stronger—does not imply that no obligations are cast on the stronger side; God’s omnipotence is the basis of his benevolence and mercy. The idea of creation in Jewish tradition reflects a divine involvement and responsibility.Footnote 135 In this sense, the Jewish idea of covenant shifted significantly from the prevalent authoritarian Near-Eastern model. The biblical covenants assume that human beings are capable of moral actionFootnote 136 and that they have the faculty (however limited) of distinguishing between good and evil.
What, ultimately, is the nature of responsibility in covenantal thought? As implied in the term responsibility (response-ability), the human verbal capacity to respond to the divine callFootnote 137 is central to what responsibility is. This dialogical leitmotif is dominant in the Hebrew Bible, from the creation of the world by divine words, through the echoing question “where are you?” (ayekah; Genesis 3:9). This dialogical character of humans and language is foundational of the human condition as coexistence with others. Many actions that humans carry out have consequences and cause possible harms for other humans, animals, and the environment—and for that, they are responsible.
The biblical moment of ayekah (which is shared by Abrahamic religions more broadly) is at the core of what we term today as answerability, accountability, and explainability. The Bible further emphasizes the narratological fact that God turns to humans (“and God said to Abraham/Moses/the Israelites …”), thus assuming that they have a choice to refuse or ignore this call—as in the biblical story of Jonah. Humans are thus considered as having moral freedom and capabilities and a linguistic capacity that enables them to interact verbally with humans and with God; the conversation is not one-sided, but dialogical.Footnote 138 The covenantal notion of responsibility implies that interhuman speech and dialogue are vital.
The element of responsibility in the covenant brings with it the idea of red lines—hence the notion of boundary (seyag) in Jewish law.Footnote 139 Such red lines are reflected in the notion that human dignity is beyond commodification: not everything is for sale.Footnote 140 Based on that, slavery, for example, is viewed negatively.Footnote 141 At the same time, and despite the legalistic temper of Jewish law, it is in many ways permissive. Based on the melioristic or positive Jewish view toward this world, in Jewish law there is a vast realm of reshut (optional matters, as distinct from ḥovah, or duty), that the law is generally permissive about, unless there is a good reason to question the legitimacy of this or other behavior.Footnote 142
Reciprocity
In the Hebrew Bible and in later Jewish tradition, covenant is predicated on relational grounds, and is examined first and foremost in terms of deeds and actions.Footnote 143 Covenant, in this regard, is not a dictator’s game between powerful and powerless,Footnote 144 but a dialogical distribution of care and authority between the parties, in a way that is built on trust, justice, free choice, and reciprocity.Footnote 145 The outcome is that in the covenantal setting (unlike a dictatorship), disappointment, resentment, and punishment are real possibilities. This mutuality has its narratological grounds in the Bible. The biblical covenant is often portrayed as a marriage between God and the Israelites (Jeremiah 2:2).Footnote 146 Accordingly, the violation of fidelity on both sides is conceived as betrayal (Ezekiel 16:25). From God’s side, disloyalty of humans is associated with the performing of idolatry,Footnote 147 which is a violation of the covenantal relationship; from the human side, experiencing unjust suffering (personal or collective) evokes the problem of divine justice and theodicy. For this reason, there is (roughly speaking) only a weak emphasis on dogmatic creed in Jewish tradition, which is fairly permissive concerning expressing one’s opinion, even about doctrinal matters foundational to the covenant.Footnote 148 This is a natural product of its covenantal mutuality. In Jewish tradition, interactions and engagements (or more generally, pragmatic interestednessFootnote 149) are endorsed.
As noted above, in the Hebraic covenant, God is portrayed as a benevolent (this is also how the phenomenon of trial—or testing, nissayon—in the Bible can be interpretedFootnote 150) rather than an omnipotent tyrant. Human beings, their relative weakness notwithstanding, are yet instructed not to manipulate God by magical means, divinization, and so on.Footnote 151 In the covenantal setting, relationships are not defined merely by power structures and hierarchies. For this reason, the weaker side (namely, humans) is not exempted from moral responsibility. Even when God changes the rules of the game (for example, in the new laws after the Flood, or post-Diluvium; see Genesis 9:1–17), the new regulation is not strictly imposed, but instructed, and is open to human responses and to later divine revisions. The biblical covenant has special attentiveness to the suffering of the poor and the weak; this is a basic lesson that the Hebrew Bible draws from the enslavement of the Israelites in Egypt.Footnote 152
Reasonability
Jewish tradition emphasizes the reasonability of the divine instruction. In general, the commandments or divine instructions are conceived as initially comprehensible: divine instruction is expected to make sense, to be reasonable, even if this reasonability might not be immediately transparent to every external observer.
The Talmudic tradition developed a distinction between mishpatim (ordinances, ethical-civil laws) and ḥuqqim (statutes, ritual laws),Footnote 153 which was later conceptualized by Rabbi Sa‘adiah GaonFootnote 154 as the distinction between rationally comprehended commandments (sikhli’yot) and categorically incomprehensible (shim‘iyot) divine laws.Footnote 155 However, as explained in many primary sources of Jewish law and the body scholarship about it, the idea that God’s teaching is (across the board) moral and that it makes moral sense is central in Jewish tradition.Footnote 156 In other words, it is not only the interpersonal and social religious laws that are purposeful: so, too, are the so-called ritual commandments.Footnote 157
At the same time, as Maimonides had argued, there is a built-in contingency in the specifications of particular commandments, as they inescapably contain a certain degree of unexplainability in their details.Footnote 158 It seems that there is here a transparency/opacity zero-sum game (call it transparency/opacity conservation law) in Jewish law—and perhaps in any legal system, since the aim for an apodictic, non-justified law (this is often the case in legal codices) makes it harder for the readers or the addressees of the law to seek for the rationales of particular laws. On the other hand, when the law includes all the relevant information and reasons, the reader is flooded with information and easily loses sight of principles and of the big picture. The quest for a fully explainable and transparent law is thus problematic or even illusionary.Footnote 159
Jewish tradition also includes less rationalisticFootnote 160 approaches to the importance of reasons for the commandments. Kabbalistic or mystical approaches, such as the book of Zohar, often hold that every detail of the commandments has far-reaching ramifications, not only on earthly matters but also on theurgic ones, on divinity itself.Footnote 161 In the Kabbalistic context, the covenantal notion of reasoned divine law (or covenantal explainability) is thus preserved, even as the nature of these reasons varies dramatically.
Explainability, Human Agency, and the Law’s Sensitivity to Real-Life Situations
Whereas the elements of responsibility (both divine and human) and reciprocity are considered as trivial in Jewish tradition,Footnote 162 the element of explainability merits some elaboration in the present context. Explainability is the reason, as discussed below, for the significance of the biblical law narratives, and it is the reason why legal rigidity is often considered problematic in Jewish law and in its philosophical accounts.
The human expectation for the explainability of God’s commandments obviously cannot always be fulfilled. As many scholars of Jewish law have noted, a certain degree of un-explainability might even be a heuristic postulate of divine law, set in place in order to establish moral-religious education (or character education, bildung).Footnote 163 However, reasonability has a solid basis in the Hebrew Bible, and in halakhahFootnote 164 (Jewish law). This invites the reader to ask what are the rationales that underlie a given ordinance. Furthermore, in the case of statutes (or ritual laws, such as the red heiferFootnote 165), there are basic coherences that apply; even if the overarching rationale (or the mechanism of purification, in the case of the red heifer) is unclear, there is usually an internal or formal-rationality (in Max Weber’s phrase): the components of the law are expected to cohere with one another.Footnote 166 Therefore, it would be extremely unconvincing to describe the Hebraic covenant as arbitrary or deprived of reasons and reasonability. For this reason, codification, legal rigidity, and stringencyFootnote 167 are considered by many halakhists as sources of concern.Footnote 168 Moreover, as we shall now detail, this discomfort is grounded in the Pentateuch itself—the foundational and formative text of the covenant.
The Law Narratives in the Pentateuch: How Covenantal Framework Effects the Law
As we explained above, in Jewish tradition, covenantal framework results in a dialogical or relational legal temper and hence the recognition of codification as a source of legal concern. Some might argue that this covenantal flexibility is merely a post-biblical invention. However, below, we briefly consider the four Pentateuchal law narratives (sippurei ha-ḥoq) or “ad hoc legal situations,”Footnote 169 that illustrate the dialogical covenantal nature and its openness, namely the inability of the written commandment to cover every possible scenario. These narratives, which were thoroughly analyzed by Simeon Chavel,Footnote 170 who calls them oracular novellas, are (1) the blasphemer (Leviticus 24:10–23); (2) impure men who were incapable of bringing the Paschal sacrifice (Numbers 9:6–14); (3) the desecrator of the laws of the Sabbath day by gathering wood (Numbers 15:32–36); and (4) the daughters of Ẓelopheḥad and the lacuna regarding inheritance law (Numbers 27:1–11). What these cases have in common is the biblical description as an open legal question that Moses himself failed to answer.Footnote 171 As Michael Fishbane has observed, these inner-biblical legal narratives testify to the dynamic and covenantal making and modification of these laws.Footnote 172
Ultimately, the answer to each of these four queries is prophetic: Moses consulted directly with God, who delivered the answer to Moses. The scriptural evidence is fascinating on two counts. First, the law narratives reveal that the existing law does not explicitly cover possible lacunas.Footnote 173 Second, in the case of the daughters of Ẓelopheḥad, not only is the question raised honored by the narrator, but God himself reaffirms their appeal: “The plea of Ẓelopheḥad’s daughters is just: you should give them a hereditary holding among their father’s kinsmen; transfer their father’s share to them” (Numbers 27:7). Yet it would be a mistake to conclude that biblical law is merely casuistic and lacks any formal dimension. Mosaic law and its value-oriented legislation,Footnote 174 which reaches its systematic peak in the Decalogue (Exodus 20:1–13; Deuteronomy 5:6–17), stands out when compared with neighboring legal systems in the ancient Near East.Footnote 175 Whereas the legal systems of other ancient Near East lands were not presumed to constitute comprehensive legal codes, the Pentateuch does present itself as such.Footnote 176 At the same time, and perhaps for this very reason, narratives are part of the biblical composition.
The conception of Mosaic law as authored by a benevolent and reason-giving God who provides space for human interpretation became formative in the Talmudic hermeneutic culture.Footnote 177 Because the covenant is an interpersonal encounter between God and humansFootnote 178 and is premised on a constant encounter between humans (bein adam leḥavero, in Talmudic jargon), the idea of an immutable law, a once-and-for-all edict that transcends circumstances, seems to contradict the covenantal ethos. In the Pentateuchal narratives of the law, it appears that the Bible itself is pushing against such immutableist legal conception. The rich narratological (or aggadic) world of the Hebrew Bible nourished the moral understanding of later Jewish sages and led them to recognize the value of legal flexibility and sensitivity to varying concrete circumstances.Footnote 179 The reflexivity of Jewish law to circumstances goes hand in hand with the inclination for explainability, and sages are usually expected by their rabbinic interlocutors and by the public to make sense of how they reached this or another conclusion.Footnote 180
The Narrative of Balaam and Balak: Reconsidering the Claim of Being a Mere Intermediary
Another way to comprehend the significance of covenantality vis-à-vis issues related to law and technology in general, and the tech giants in particular, is by considering the biblical story of Balak and Balaam (or Bil‘am, as his name is pronounced in Hebrew) (Numbers 22–24). Balaam, who had magical skills, is from a plain biblical perspective (peshat) a member of the Noachide covenant. He was asked by Balak the king of Moab to curse the Israelites, then a collective of nomad refugees, to prevent them from trespassing the land of Moab. God is angered by this request and prevents Balaam in various ways from carrying out the notorious Moabite plan, and instead makes Balaam bless the Israelites.
Within this broader story, two issues are relevant to the present context: (1) Balaam, as a magician, can be described as a proto–technology officerFootnote 181 who is expected by the Moabites to provide a magical service, of the kind identified as black magic;Footnote 182 and (2) Balaamʼs claim that he has no initial responsibility for his actions (Numbers 22:18, 38; 23:12) because he is a mere vessel of God’s will. This claim of being a mere intermediary can be understood as piousness (namely, Balaamʼs insistence not to manipulate God), but in the immediate context, it mainly mirrors Balak’s intention to use Balaam as magician—as an offensive proxy. After the epistemic lesson that God teaches Balaam with the ass whose mouth is opened and speaks (Numbers 22:22–30), Balaam declares, “For there is no divination [naḥash] in [the descendants of] Jacob, neither is there any magic [kessem] in Israel” (Numbers 23:23). Many commentators throughout the generations learned from this story that the Hebrew Bible prohibits the making of magic into the cosmic operation system at the expense of morality.Footnote 183 Justice and compassion, and not mere force (however mystical or noble) are the main interest of the biblical God and of the covenantal ethos.Footnote 184
Yet there is also a lesson from this biblical story in the context of law and technology. Balaam claimed to be a mere intermediary in providing his service. Balak attempted to utilize a magical mechanism (or service), and God asserts and clarifies that the agent cannot presume to lack agency.Footnote 185 On the one hand, Balaam does say to Balak that his hands are tied because God himself is binding him. Yet the Bible makes clear that God is not a mere tyrant, but substantiates worldly creation on law and providence on principles of justice, compassion, and goodness (see Deuteronomy 6:18, 16:20; Micah 6:8; and many more).Footnote 186 Justice and mercy are supreme to magic.
In Jewish tradition, as in other normative traditions, there is no illusion about the possibility of a complete freedom or liberation within human life. Rather, Judaism endorses an approach in which lawfulness is conceived as an expression on freedom.Footnote 187 In other words, covenant opens the stage for a verbal dialogue, instead of mere technical causation or violence. The biblical warning against false prophecy (such as that of Hananiah, the son of Azzur; see Jeremiah 28 and Deuteronomy 17:2–5), stresses the idea that religion does not provide a false comfort or moral holidays, but rather demands effort and devotion. Balaam’s narrative reaffirms the broader biblical principle of a pan-human covenantality with God in which human beings are held responsible and cannot presume to be mere intermediaries because every significant action requires moral discretion.
Covenant’s Ramifications for Law and Technology: Partnership, Dialogue, and Consent
Our analysis thus far provides us with a wider perspective over the concept of covenant. The phenomenon that describes both the power of the subjects of the covenant and how divine legislation (or instruction) is perceived is formulated in Jewish tradition as the “agreement of the public” (haskamat haẓibbur).Footnote 188 It refers to the phenomenon of a group of people who democratically deliberate collective matters of common interest and concern.Footnote 189 This kind of dialogical social reasoning is the ground for understanding the sociality in Jewish tradition. Its rationale is as follows. When a human collective is conceived of as nothing but the servants of God in a covenant based exclusively on obedience, there is no room for pragmatic human reasoning. In such a case, divine commandments are typically considered as irrational statutes (ḥuqqim) rather than rational laws (mishpatim).Footnote 190 However, in a dialogical covenantal conception of theology and of the political, which is dominant in Jewish sources, the human collective is perceived to be granted significant deliberative status.Footnote 191 Traditional rabbis assume the existence of an interpretive continuity throughout the generations, which sets the ground for the possibility of future generations to engage with the ancient Sinaitic covenant. Moreover, the ability of later generations to take an active part in the ongoing formation of Jewish law is predicated on such conception of historical continuity.Footnote 192 Given such framing, the aggregate deliberations of the people, can be considered as a form of collective reasoning and deliberation. The agreement of the public is a form of partnership (albeit not an equal one) with God, in the unfolding constitution of the covenant.Footnote 193
Revisiting the Relationship between Tech Giants and Tech Users
Below we revisit the substantive questions of law and technology and offer responses to fundamental legal problems pertaining to the relationship between tech firms and tech users, based on and inspired by the idea of covenant, as portrayed above.
Entering, Exiting, Dialogue, and Consent
When the commercial rule of tech firms is considered against the Hebraic concept of covenant, or covenantality, which is based on voluntary association and commitment, it is clear that neither tech firms nor customers are exempted from accountability to the other parties. From this perspective, entering into a commercial (or any long-term and substantial) association should be an action of mutual consent with a possibility of exit (in reasonable terms). Therefore, the somewhat ritualistic process of providing users with full information as to the platform’s terms of use and their modification in real timeFootnote 194 could be justified rather than viewed as an empty gesture. When structured along the lines here discussed, the covenant paradigm does not categorically reject the notion of addressing (or even regulating?) the most central elements of life through a contractual framework.Footnote 195 Furthermore, the principle of mutuality mandates that given sound reasons, the two sides to the agreement have the possibility of ending the relationship (as in marital relations and divorce). Further inquiry must establish to what extent it is acceptable and justified to intentionally encumber (possibly given the ex-ante preferences of both contractual parties) the option to exit—for instance, by requiring a party to fill out extensive forms and by applying cool-off periods. Note that in both contexts the actual content agreed upon is, for the most part dictated by one party, yet other work-arounds are (and thus could be, in the tech context) applied to enable an equitable outcome.
Finally, the fact that the covenant includes, facilitates, and perhaps even encourages internal deliberation is aligned with the most recent evolving initiatives of oversight boards that provide feedback from stakeholders.Footnote 196 Indeed, Facebook has famously introduced its oversight board, which has already faced very difficult and timely issues regarding Donald Trump’s account.Footnote 197 Regardless of whether the recent decisions are correct and acceptable, the overall deliberative move seems to lend the platform credence and public credibility, thus providing some evidence that the covenantal perspective might prove fruitful.
Tailoring, Manipulation, and Explainability
Allowing digital platforms to carry out manipulative actions that undermine the best interests of the users should not be perceived as a part of normal and acceptable commercial transactions. The same could be said of arbitrary censorship of a legitimate discourse. These concerns could be mitigated by assuring sufficient explainability throughout the user experience. As we note above, covenantal explainability emphasizes the importance of reasonability and explainability, as well as accountability, more broadly.
The idea of covenant provides an ethical model in which the stronger side nonetheless has an inherent moral commitment to provide explanations to the other party,Footnote 198 which is conceived as its covenantal partner (recall the paradigm of the marriage between God and Israel). The relational model provides an advantage as the right to explainability is not necessarily derived from the users’ autonomy or the need to protect them from harm (the leading justifications for recognizing these rights today). Rather, it is premised on the need and duty to generate a reciprocal, fair, prosperous, and sustainable relationship. This basic understanding sets in place an amoral obligation that has the capacity to restrain potential work-arounds by tech giants that might argue that no harm is inflictedFootnote 199 or personal data used in relevant actions, and thus disclosure should remain minimal. In the technological context, such explanations should pertain to codes that are both legal (such as the underlying rules and contracts) and technological (the programmed interface running the systems).
The idea of covenant provides additional weight to pro-explainability claims and tilts the discussion as to the extent of regulatory intervention in that direction. However, the covenant does not mandate an absolutist position regarding the need for explainability. The philosophy of Jewish law—and covenantality in this regard—is not illusionary regarding the feasible range of the explainability mandate.Footnote 200 It recognizes the legal fact that divine law includes some aspects that are not fully comprehensible or rationalizable. As noted above, there seems to be some transparency/opacity zero-sum games, which exist in any legal system. Thus, similarly, a policy that allows tech giants to maintain some degree of indispensable opacity while assuring that their users are provided with sufficient or good-enough insight to their inner workings and the principles of proper use can be acceptable.
On the side of the users, and considering the covenantal emphasis on individual responsibility, the prohibition against the gaming of systems (and their enforcement by law) could be justified.Footnote 201 This conclusion somewhat opposes the position of scholars such as Brunton and Nissenbaum, which legitimizes obfuscation efforts.Footnote 202 More specifically, these scholars explain that there are only limited ethical impediments to providing false data to tech giants as part of an effort to obfuscate profiling, tailoring, and customizing practices. Brunton and Nissenbaum make this argument while discussing the morality of submitting false queries to search engines and swiping credentials at shopping venues. Yet as noted above, the covenant also sets obligations on the user side, calling the morality of such actions into question.Footnote 203
Mere Intermediation?
Can tech firms be considered mere service providers? From a covenantal point of view, both legal parties are real—neither can presume to be a nonparty: Based on the covenantal vision, and given a long-standing provider-customer relationship, it would be unacceptable to ignore the moral and legal responsibilities this relationship entails for both parties. As suggested above in the case of Balaam and Balak, covenantal tradition is at odds with eliminating personal obligations related to various aspects of life. Differently from John Rawls’s famous model of the veil of ignorance,Footnote 204 which arguably diminishes (or even undermines) the uniqueness of agents in the moral sphere, in the covenantal setting the differences are essential for understanding how relationships are conceived and function. From this perspective, it would be implausible that tech firms will presume to be absent, when they hold so much power. Therefore, current popular arguments calling for providing absolute immunity to tech giants so as to enhance their motivation to innovate, or protect their speech, should be taken with more than a grain of salt.Footnote 205
Conclusion: Divinizing or Un-divinizing Tech Giants? A Call for Responsibility
We propose the idea of covenantality as an axiological scheme for rethinking conflicts in law and technology. Our proposal stems from the belief that Jewish law can contribute to non-Jewish legal systems and cultures (including non-Abrahamic, Eastern ones),Footnote 206 as it contributed to Abrahamic traditions. The concept of covenant, we propose, can serve as an Archimedean point that has the potential of repairing and integrating the fragmented conceptual schemes that dominate the human and legal sciences in the present. Covenantality assumes that even if the incommensurability thesis is true to some extent regarding the various values technology policy disputes involve (and human cultures are surely diverse), the idea of a shared human ethos can serve as a postulate, namely as a heuristic or regulative vision.Footnote 207
Covenantality might already be arriving to the tech space—at least in the European Union and in the context of broader obligations for the tech firms. It is fair to assume that, as regulatory measures to address the challenges presented by the tech giants worldwide are set forth, some measures would partially accept segments of the noted paradigm, while rejecting others. Yet the recently minted DMA and DSAFootnote 208 provide an interesting and promising test case. Both frameworks push back against the tech giants’ influence, striving to overcome the tech giants’ attempts to escape the EU’s jurisdiction. The laws counter the tech giants’ domination of the discourse by introducing extensive transparency requirements and additions to the firms’ liability. They sidestep the user’s consent by a broad set of mandatory, non-waivable rules. They counter the firms’ ability to abuse the vast troves of personal information at their disposal by outlawing some practices and providing greater transparency about others.
The relationship between the DMA’s and the DSA’s impact and the notion of covenantal concepts will only become apparent in the coming years. Yet the texts of these laws provide some clues and early conjectures. Overall, the DMA focuses on the commercial aspects of the relationship between the tech-giants and the users. It provides (for instance in Article 6) some enhanced forms of “exit” (given the portability rights and ability to unsubscribe). It also enhances the transparency of some firms’ operations. However, it does not address social duties the tech-giants should assume, or the form of special relationship they have formed with their clients. The focus, rather, is very much on notions of competition law.
The DSA, however, seems to be more relevant to our covenant-based analysis. It addresses the obligations that tech giants should assume given their dominant social role as intermediaries and facilitators of access to a vast variety of users. This is reflected in requirements pertaining to their liability, their duty to explain and even refrain from harmful acts (such as “dark patterns” in Article 52). What is less apparent in the DSA’s current language is the role it calls upon users to assume—for instance in the form of personal responsibility—as being part of this ongoing relationship. But in the broader picture, it seems that the new EU legislation (DSA and DMA) is heading toward a more covenantal mindset, in which tech firms are expected to adhere to what we termed here as the three Rs: responsibility, reciprocity, and reasonability. The analysis we provide above might assist in fine-tuning this response to comply with a long-standing tradition of covenantality.
The ethos of covenantality, we submit, is not exclusive to Judaism: it is found in many other pragmatist or humanist traditions, Abrahamic or other, that emphasize relationality, integration, commitment, and individuality.Footnote 209 Furthermore, it may well be the case that various strands of post-Holocaust Judaism lost much of the covenantal sensitivities.Footnote 210 Yet, covenantality—whose holism resembles and in fact predates the concept of the social web (and World Wide Web as such)Footnote 211—may serve as a paradigm for rethinking contemporary problems of tech’s interactions, services, standardization, and regulation. The notion of the covenant might also indicate the needed components for formulating a resilient and sustainable relationship between asymmetric parties given historical precedent and thus can be applied to other contexts. Can anyone assure that the covenantal paradigm will prove beneficial at the empirical level? Clearly not. Yet, the long career of the idea of covenant, with its core principles of responsibility, reciprocity, and reasonability, as well as its distinct voluntary traits, give us a reason to think that covenant is at least worth considering.
In the present digital age, the tech giants not only wield enormous power but also enjoy an imagery of God-like entitiesFootnote 212 that is manifested in the semi-futuristic discourse about who will dominate future societies.Footnote 213 The idea of covenant is helpful in this regard, as it warns against the deification of anything beyond God (Exodus 20:2–4 in the Decalogue, and many other instances). This prohibition is not technical or arbitrary, but rooted in the implicit humanist ethos of the Bible, namely the creation of all human beings in the image of God (Genesis 1:27).Footnote 214 Against the idea of resemblance between God and the created humans, idolatry is a theological and anthropological sin at once. In the modern world, with its alleged idolatrous urge,Footnote 215 the prohibition against idolatry has a profound moral significance.Footnote 216 In the context of tech firms, the pitfall is obvious: viewing them as gods typically entails a diminishing of the status of tech users, the customers. The idea of covenant as described above can challenge the problematic image of tech giants as gods In Jewish tradition, God is conceived as the stronger party, yet caring for and committed to humans and humanity. There is an asymmetry in the biblical covenant, but this asymmetry does not dictate a mere brutality; rather it is a relational engagement. If in the Hebraic ethos God is portrayed as so committed, the initial a fortiori lesson of responsibility and humility for any human, less than divine authority is clear.
Acknowledgments
We thank Benjamin (Benny) Porat for hosting the research group on Jewish Law and the Ethics of Emerging AI Technologies, at the Institute of Jewish Law, The Hebrew University of Jerusalem (2020–2021), where we presented a draft of this article. For constructive feedback on previous versions, we are grateful to Benny Porat, Suzanne Last Stone, Hava Tirosh-Samuelson, Shlomo Zuckier, Tsuriel Rashi, David Zvi Kalman, Yonaton Sagiv, Joseph E. David, Netta Tauber, and Tomer Antshel. Any error remaining is our own. This project received partial funding from the University of Haifa’s Cyber Center for Law and Policy.
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