HALAKHA: A WEEKLY SHIUR IN HALAKHIC TOPICS

HALAKHIC CHALLENGES OF ELECTRONIC REPRODUCTIONS.

By Rav Mordechai Friedman

            The rapidly developing technologies that are involved in the electronic reproduction of audio and visual stimuli present us with an array of new tools.  Their implementation brings us abilities, opportunities, and experiences never imagined before.  Some of the applications of these tools require serious halakhic consideration.

The fundamental concepts relevant to these halakhic challenges have been dealt with by poskim of the past century and are partially rooted in the Talmud.  Our task is to extract these concepts from the Talmud and poskim; to clarify, conceptualize and categorize the various positions; and to explore their possible applications to new areas of technology.

            The proper fulfillment of many mitzvot requires the use or stimulation of one or more of our senses.  (This would not be the case for all mitzvot — for example, the commandment "You shall love the Lord your God," in Devarim 6:5.)  These sensory mitzvot have a natural or original form of action that results in the normal stimulation. Our question would then be: are the artificially produced experiences of electronic media considered halakhically valid?

            We must limit the scope of this question.  If one were to create, with the proper visual and sensory equipment, a virtual etrog to hold on the first day of Sukkot, we would still undoubtedly object to using it to fulfill the mitzva.  The halakha has specific requirements for size, weight, and ownership, all of which point to a formal physical (and therefore "real") object.

            There are many mitzvot, however, that are centered around sensory experiences and not a particular object, such as hearing the shofar, megilla reading, or communal prayers; seeing the new moon for kiddush levana; observing the cities of Yehuda and the Temple Mount in their state of destruction; as well as a long list of berakhot required when witnessing various natural phenomena.  Could the sensory prerequisites of these mitzvot be provided via electronic reproductions?

            An understanding of the essential central issues involved will bring us to a better grasp of the Talmudic sources and a clearer view of the direction of the poskim. A priori, one might suggest three positions regarding the halakhic validity of these reproductions. We will examine each in depth.

I: All reproductions are invalid

            This approach posits that the original, natural form of a mitzva — be it of Torah or rabbinic origin — is the only acceptable form of fulfillment.  Any deviation from the pure configuration would then invalidate one's performance of a given mitzva.

            The posek (halakhic authority) who best represents this approach is Rav Shelomo Zalman Auerbach zt"l in his Minchat Shelomo, responsum 9.  In this responsum, Rav Shelomo Zalman explains at great length the exact electronic workings of the basic microphone-speaker setup.  He concludes:

After the entire description above, it is apparent that by hearing the sound of a shofar or the reading of the megilla via a telephone or loudspeaker (even if we do not hold that the sound was changed a bit, which would give the blast the [invalid] status of blowing into a pit or cistern), one has not fulfilled his obligation at all.  When the auditory impression is effected by the sound of the shofar, which vibrates the air and creates sound waves, it is considered hearing the sound of a shofar.  This is not the case when the ear hears only the vibrations of a membrane; even though those vibrations create sound waves in the air which are exactly like those of the shofar, it stands to reason that it is only the sound of the vibration of a membrane that one hears and not the sound of a shofar...  Therefore, I am very perplexed by some of the great poskim who permitted listening to the megilla reading via sound amplifiers.  How is it that they did not realize this fact, that [the listeners] only hear the sound of the vibration of a membrane, and not the sound of the megilla being read by a human being?  (I am sorry that according to this, those people who are hard of hearing and use a hearing aid in order to pick up sound do not fulfill the obligation of shofar, megilla reading, or similar [mitzvot] at all....)

            There are two basic assumptions behind Rav Auerbach's position, the rejection of which would thus produce two basic directions that would lead us to permit an artificial reproduction of the main stimulus of the mitzva. The first supposition of the above approach is that halakha differentiates between an original, authentic stimulation and a virtual one.  The second is that all mitzvot have a natural process of stimulation that is part of the essential definition of each mitzva.  However, one may accept the first and reject the second assumption.  Rather than invalidating all simulations across the board, one would determine the requirements of individual areas of halakha.  This would give rise to a second approach, which we will now examine.

II: Reproductions are valid in specific areas

            To illustrate this point, let us first examine two examples at opposite extremes: etrog and tzedaka.  As mentioned above, a virtual etrog would clearly be invalid since there are specific requirements for the object used.  On the other hand, if one were to make a money transfer from his account to that of a needy family, one would clearly have fulfilled the mitzva of tzedaka, even though the transfer was entirely "virtual."

            The essential difference is that in the case of tzedaka, we are concerned solely with the END RESULT, as opposed to the etrog, where the PROCESS is equally significant in the fulfillment of the mitzva.  This process, consequently, has specific physical requirements which are included in the essential definition of the mitzva.

            Thus, according to this second approach, before invalidating a reproduction or artificial stimulation we must first examine each individual area of halakha, to determine a) if there exists a significant process within the mitzva's parameters, and b) if there are specific physical halakhic requirements inherent in this process of the mitzva.

Amen:

            Another telling example is answering "Amen" without hearing the natural voice of the speaker.  The gemara in Sukka 51b relates that the synagogue of Alexandria, Egypt was so large that they had to wave flags so that the people in the back knew when to answer "amen."  This appears to be an excellent example of a simulated or virtual form of communicating a berakha (blessing) which is considered valid.  However, interestingly, Rav Ovadya Yosef (in his Yechaveh Da'at II, chap. 68) rules like Rav S.Z. Auerbach zt"l that for megilla and kiddush, in order to fulfill one's obligation one must hear the actual voice of the person, thus disqualifying the use of a microphone.  Yet, in the issue of answering amen to a berakha, he rules against Rav Auerbach (who disallowed answering to a live berakha heard over a radio) and holds that one may answer.

            Rav Ovadya seems to agree with the first basic supposition that the halakha differentiates between the original authentic stimulation and a virtual one.  However, he disagrees with Rav Auerbach's second assumption that the original authentic stimulation is required in all halakhot across the board.  It would seem that Rav Ovadya feels that the requirement to answer "amen" to a berakha is fulfilled via live radio because the process of communication is of little importance; what matters is the end knowledge that at a given moment, a valid berakha was recited.  As he himself points out, this would be the straightforward understanding of the gemara about the synagogue in Alexandria.[1]

Shofar:

            Shofar is another mitzva whose reproduction is discussed.  The mishna on Rosh Ha-shana 27b states:

"One who blows [a shofar] into a pit, a cistern, or a cask: if he hears the sound of the shofar, he has fulfilled his requirement; if he hears the sound of the echo (havara), he has not fulfilled his requirement."

The obvious conclusion is that no audio reproduction of the shofar blast is valid.  This could be in line either with the first approach — that reproduction is invalid in any and all halakhot — or with the second position which we have raised, that the Rabbis specifically disqualified a reproduced shofar blast because the process of producing the sound is part of the definition of the mitzva of shofar.

Megilla:

            Megilla is an example that shows a practical halakhic difference between the two approaches.  Rav S.Z. Auerbach, as well as Rav Yitzchak Weiss in his Minchat Yitzchak (vol. 2, responsum 113; see also responsum 84 and Rav Ovadya Yosef's Yabi'a Omer, vol. 1, responsum 1), disqualifies hearing the megilla reading via speakers.  The opposing view allows it on the grounds that the process of conveying the reading of the text is less significant than the end result of hearing, learning and pirsumei nisa (publicizing the miracle of Purim).  This is the position of Rav Tzvi Pesach Frank (as quoted in the Minchat Yitzchak ibid.) and the Minchat Eliezer (vol. 2, responsum 72).

Kiddush Ha-Chodesh:

            Yet another example is witnessing the new moon for kiddush ha-chodesh, bet din's sanctification of the new month.  Does one need to view it with the naked eye?  Can some form of reliable reproduction suffice?  This too seems to hinge on whether the very act of viewing the phenomenon of the new moon is part of the essential definition of this form of testimony.

            The gemara (Rosh Ha-shana 24a) quotes a beraita which states: "[Witnesses who say,] 'We saw it as a reflection in the water,'  [or] 'We saw it be-ashashit [in or via glass],' [or] 'We saw it in the clouds,' cannot testify."   The Shevut Yaakov (vol. 1, responsum 126) quotes the Devar Shmu'el as stating, on the basis of the above beraita, that one cannot view the moon via eyeglasses for the purpose of kiddush ha-chodesh or birkat ha-levana, the blessing recited on the new moon.  The Shevut Yaakov explains that the Devar Shemu'el interpreted be-ashashit to mean "through glass."  He then disagrees with the Devar Shemu'el and says the correct meaning is "[reflection] via a glass mirror."  The reason behind this is that the person viewing the moon out of its place is seeing only a virtual moon, a reproduction, and thus his observation is invalid.  On the other hand, to view the moon via a window or lens would be perfectly acceptable.

            However, it is possible that the Shevut Yaakov did not have the text of the Devar Shemu'el before him, because a basic reading of the responsum (242), reveals that the latter quite clearly interprets be-ashashit to be a reflection (and even describes a mirror!); furthermore, on the basis of connecting the tail end of the above gemara with this beraita, he concludes that the grounds for the invalidation of this form of observation is the fear of an inaccurate impression on the part of the witness.

            This is very relevant to our discussion.  While the Shevut Yaakov disqualifies a reflection solely on the grounds of it not being the original true moon, the Devar Shemu'el, quoting the gemara, holds that the reason is possible inaccuracy.  Theoretically, a super-accurate, foolproof instrument would be valid to transmit the sight of the new moon to the witness; only the end result of the knowledge of the witness is relevant.

(Another understanding would be that because of the potential inaccuracy, the Rabbis disqualified any viewing other than with the naked eye.  They did this by defining the act of witnessing to include the process.  This is clearly not the direction of the Devar Shemu'el himself, who concludes that a person can recite the blessing on a new moon seen via a mirror if he has "spotters" viewing the same sight at the same time with their unaided eyes, thus belying any doubt that what he sees in the mirror is indeed the new moon.)

Birkhot Re'iya via Television:

            Finally, we must consider the case of birkhot re'iya.  The mishna in Berakhot 54a is the source for this category, a type of blessing or praise of God which is triggered by observing a particular scene or phenomenon.  The long list of the mishna includes berakhot said upon seeing the place where a miracle occurred for the sake of the Jewish people, shooting stars, comets, lightning, mountains, rivers and oceans.   One particular berakha is recited upon hearing good news ("hatov ve-hametiv"), another on bad news ("barukh dayan ha-emet").  It would stand to reason that even Rav Auerbach would require a berakha when hearing such news over the telephone or even via mail.  The end result of receiving the information seems to be the sole criterion to trigger the obligation of the berakha.

            If we now address the beginning of the mishna, regarding birkhot re'iya, we must ask ourselves: did the Rabbis institute these blessings purely based upon the end result of receiving information, or did they include the process by which we witness these phenomena as an essential part of the berakha's trigger?  Do we allow for electronic reproduction such as television, or will only the real natural phenomenon suffice?

            While I am unable to quote a primary or secondary source to come to our aid in this issue, I do believe that our general discussion and specifically the above-mentioned Devar Shemu'el helps us see the crux of the issue.

            In his responsum, the Devar Shemu'el assumes that the halakha concerning a "virtual" moon seen via a reflection (with regard to witnesses for kiddush ha-chodesh) may be applied to the separate issue of kiddush levana, even though the former is the accumulation of testimony concerning the appearance of the new moon, while the latter is merely a blessing said upon viewing it.  Yet the Devar Shemu'el understands that kiddush levana, which is a birkat re'iya, has the same criteria as gathering testimony, both being solely result-oriented.

            Even if we accept this assumption, it is possible that the berakha is not based solely on the visual or auditory affirmation that a particular phenomenon is occurring or exists, but also the total experience of being present at an unusual sight or event.  This definition would invalidate a television viewing of lightning or a mountain or an elephant, even if they were being transmitted live.

            A support for this understanding could be seen in the halakhic requirement of a thirty-day interval between sightings that is found by certain berakhot.[2] Only after a thirty-day hiatus does one feel the proper emotion of awe in the face of these phenomena.  The emotion of the individual, thereafter, is as much a trigger to the berakha as is the act of viewing.

            We have seen two reasons to invalidate a "virtual viewing" as a trigger for birkhat re'iya: first, the possibility that the Rabbis required the natural process of viewing the reality as well as the result of receiving the visual information; second, that the criterion of "result" might include an emotional response that only happens when the person is present at an unusual sight or event.

            It is quite possible that television and later developments do affect birkhot re'iya in a related way.  Even if one cannot make a berakha upon seeing an elephant on television, the very sighting may invalidate a berakha when seeing an elephant in the zoo within thirty days.  This might seem strange.  Television viewing is not a valid act to trigger a berakha, yet it is valid enough to give one the status of having viewed the phenomenon in order to exempt him for the next thirty days.  This could be understood if the required trigger of the birkhot re'iya includes both a valid physical sighting as well as a certain level of emotional response.  Television viewing brings a sense of familiarity to the phenomenon, e.g. seeing an elephant.  This familiarity waters down the physical visual experience (e.g. seeing a live elephant at the zoo), thus robbing us of the required emotional level and so the berakha.[3]

III: Reproductions are generally valid

            Until now, we have seen two approaches to the basic question of the validity of a stimulation of our senses that is produced artificially. The first opinion invalidates all reproductions.  The second maintains that it depends on the varying requirements of each area of halakha: namely, whether there is a process of creating those stimuli which is essential to the definition of the mitzva.

            However, a third possibility exists.  It is possible to say that generally, there is no difference between reality and a reproduction as long as the reproduction has a real, physical origin.  (This would still exclude a totally synthetic creation, such as computer-generated graphics or sound.)  This approach is indeed voiced by a few halakhic authorities of the past century.

            In his Gilyonei Ha-shas (Berakhot 25b), Rav Yosef Engel, challenged by a new invention of his time called the telephone, raises a possibility that shofar and megilla via phone would be valid since: 

I remember seeing in nature textbooks that a person's voice does not reach the listener's ear, but rather the voice vibrates the air molecules near his mouth, and they in turn do the same to the adjacent air molecules, and so on, until the air molecules in the listener's ear vibrate.  According to this, all hearing is produced by gerama (indirect action)... and not the actual voice of the speaker.

            He later rejects this approach, saying that telephones are nonetheless not a natural form of communication and therefore may not be considered halakhic hearing.  The initial idea he presents, however, is fascinating.  Since all audio communication is via a chain reaction and thus indirect, placing an electronic device at the beginning of this domino effect not only achieves the same result as the natural form, but essentially is the same as any natural process.  This would be limited to sound, as light is actually composed of photons coming from an object and entering our eyes.

            Rav Moshe Feinstein zt"l (Igrot Moshe, O.C. vol. I, responsum 108) clearly describes the exact same idea as Rav Yosef Engel's initial position and adds that this approach is "more logical" than the opinion that it is like hearing the megilla from a non-obligated person and therefore invalid.  The latter is basically the opinion we saw in Rav Shelomo Zalman Auerbach's responsum.

SUMMARY

We have thus isolated and illustrated three approaches:

1.  All stimuli that are not from a natural origin, are not in their natural form, or do not originate from a natural process are invalid for the fulfillment of almost any halakhic obligation.

2.  The essential definition of each mitzva must be individually examined.  If the process and result are essential, we must disqualify an artificial process which produces the stimulus.  If the mitzva is solely result-oriented, then we disregard the fact that the result was artificially achieved.

3.  The end result of sound, in its nature, is received via a process which is indirect.  Thus, there is no such thing as an "original" or "authentic" natural sound stimulus, and any and all sound reproductions are valid.  Even this approach is limited to reproductions, as opposed to a production of a synthetic sound without an original natual source.  It also would not apply to visual stimuli. 

A Final Note:

            The future undoubtly holds a fantastic combination of applications of the unfolding new technologies.  Virtual reality is a perfect illustration of this.  Combining computer generated audio and video stimulation, it is capable of simulating real-life experiences.  Under present development is a minute light sensitive computer chip that can be implanted into the retina of the eye, directly sending signals to the optic nerve.

The three approaches discussed deal with the fundamentals upon which rests the question of the halakhic validity of any artificial stimuli.

FOOTNOTES:

[1] Rav Auerbach is forced to explain the gemara differently.  He says that "amen" may be answered because there is a minyan of people hearing the berakha directly.  The people who are too far away to hear it become eligible to answer because they are somehow annexed to the hearing group.

[2] The mishna on Berakhot 54a lists:

"On shooting stars, on comets, on thunder, on high winds, and on lightning, one says: 'Blessed [...] Whose power and strength fill the world.'  On mountains, on hills, on seas, on rivers, and on deserts, one says: 'Blessed [...] Who performs the act of creation.'  Rabbi Yehuda says: One who sees the Great Sea says: 'Blessed [...] Who made the Great Sea,' [but only] when he sees it infrequently." 

The Yerushalmi interprets "infrequently" to be once in thirty days.  On this basis, Tosafot (ad loc.) rule that this applies not only to seeing the Mediterranean ("the Great Sea") but to all cases of the mishna.  The Rambam (Hilkhot Berakhot 10:15) cites this thirty-day limit in connection with the blessings for mountains, seas, deserts, rivers, and the Great Sea, seemingly excluding all the other phenomena of the mishna.  A possible understanding of the Rambam is that he differentiates between static phenomena (such as mountains) and dynamic occurrences (such as lightning).  Both require a special, emotional, awe-inspiring experience for the individual, but while the uniqueness is supplied to the former by the thirty-day lapse, it is lent to the latter by the spontaneity of nature.

[3] A possible indication against this approach is the responsum of Halakhot Ketanot, vol. I, chap. 220:

Question: his friend saw him and then left the city, but within thirty days [the individual who remained] received a letter from him; should he recite "She-hechiyanu" [said when seeing a close friend one has not seen for thirty days or more] or "Mechayei meitim" [said if his absence was more than twelve months]?

Answer: It is possible that "Mechayei meitim" should not be recited, since there is no forgetting [after twelve months, the basis of the obligation of the blessing] as one forgets a deceased [since he has heard from him].  But "She-hechiyanu" which was instituted on the seeing of his face, he should say.

It would appear that the assumption of the question was our very point, that an element of emotion is headed off by the letter.  The author of the Halakhot Ketanot, however, overturns this assumption, saying that for "She-hechiyanu" the only element that is of relevance is seeing the face of one's friend for the first time in thirty days.