By Rabbi Yair Hoffman
They are called robocalls, and in the Jewish community, they have somehow figured out a way to circumvent the Do Not Call Registry.
Often, the caller ID will indicate that the call is coming from some important person, which serves as an incentive to answer. Many a time, the robocall comes during the homework or bedtime routine. And some parents, when they hear the caller ID, actually stop what they are doing and answer the call–only to be frustrated when they discover that they had been hoodwinked. At other times the robocalls come late in the nighttime, and at other times they call too early. One elderly woman recently answered an early-morning robocall, thinking it was some emergency, and fell down and broke her hip in the attempt to answer it. These calls are considered by many as time-wasters–or perhaps time-stealers. They may also be quite illegal.
Time is an intangible. Is taking up someone’s time against their will considered a form of theft–especially since the person was fooled into answering? It is said in the name of the Chofetz Chaim that stealing people’s sleep is one of the worst forms of gezel–theft. His reason is that it can never be paid back. Perhaps the idea extends beyond stealing sleep to also include stealing another’s time. (Indeed, even the idea of stealing sleep may not be so accurate, as will be discussed).
Or perhaps these calls would be considered merely an annoyance, but a permitted one. How is this any different than knocking on someone’s door in an attempt to sell something or to solicit a donation?
The first thing one must assess when dealing with such questions is what the custom is in the location. If it is the custom (minhag ha’medinah) for such calls to take place, then it would be permitted (see, for example, Shulchan Aruch CM 239:2 and 231:2) unless one had made specific efforts to stop them, such as placing themselves on the Do Not Call Registry. If there is a sign that states No Soliciting, then it would be considered wasting time or perhaps even stealing the time of another.
As far as timing is concerned, even if one has not placed themselves on the registry, calling earlier or later than is customary would also be considered a form of wasting another’s time or stealing it.
Very often, the law of the land determines the custom or minhag ha’medinah. The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush. The TCPA restricts telephone solicitations and the use of automated telephone equipment principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.
Unless the recipient has given prior express consent, the TCPA and Federal Communications Commission (FCC) rules under the TCPA generally: 1. Prohibit solicitors from calling residences before 8:00 a.m. or after 9:00 p.m., local time; 2. Require solicitors to maintain a company-specific “do-not-call” (DNC) list of consumers who asked not to be called. (The DNC request must be honored for five years); 3. Require solicitors to honor the National Do Not Call Registry; 4. Require solicitors to provide their name, the true name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted; 5. Prohibit solicitations to residences using an artificial voice or a recording.
While nonprofits are sometimes exempt from some parts of the TCPA, that does not allow them to flout the identification laws.
Although not halachically permitted, according to the law of the land in the event of a violation of the TCPA, a subscriber may: 1. sue for up to $500 for each violation or recover actual monetary loss, whichever is greater; 2. seek an injunction; or 3. both. In the event of a willful violation of the TCPA, a subscriber may sue for up to three times the damages, i.e. $1,500, for each violation.
The Stealing Issue
The word “theft” is a harsh one. Is it true that the halachah would consider such a thing theft? In the Klausenberger Rebbe’s tzavaah, he writes to those people who “stole” his time that he is not mochel them unless they take it upon themselves to learn two blatt a day with Tosfos. It could be, however, that the Klausenberger Rebbe, tzaddik that he was, was just using hyperbole to create more limud haTorah. But let’s analyze the “stealing” issue.
Rav Wosner’s View. Rav Shmuel HaLevi Wosner, zt’l, the rav and av beis din of the Zichron Meir section of Bnei Brak, discusses stealing sleep in the seventh volume of his responsa (Shevet HaLevi #224).
Rav Wosner begins his responsum with the position that the term “theft” can only truly be used when one steals an actual item and the thief either uses that item or benefits from it. He writes that preventing someone from sleeping is prohibited because one person is not allowed to cause damage to another or to prevent another from realizing a benefit, but there is no actual theft involved. Rav Wosner admits that there is definitely a proof from Bava Basra 20b, as well as from Choshen Mishpat siman 156:2 and 3, that preventing someone from sleeping is prohibited.
The Shulchan Aruch discusses whether someone is permitted to open a commercial store in a residential neighborhood. Rav Karo writes as follows:
“The immediate neighbors may prevent him from opening up such a store and tell him, ‘We cannot sleep, on account of the noise of those who are entering.’ He may only do his work in the house and sell it in the marketplace. However, they may not stop him and say, ‘We cannot sleep, because of the sound of the hammer, or the mill.’ This is because he already began doing this and they did not stop him from doing it earlier.”
Although the parameters of what is permitted in a residential area and what is not are somewhat complex, the essential issue that preventing someone from sleeping is generally prohibited can be established from this ruling of the Shulchan Aruch. Rav Wosner concludes his response with the idea that the term “gezel” is somewhat of a misnomer.
An Alternative View. We do find, however, that Chazal perhaps define the term “gezel” in a broader fashion than Rav Wosner understands it. The term is used in the Talmud (Berachos 6b) in a situation that may not quite be considered “stealing an actual item and using or benefiting from it.” Rav Chelbo quotes Rav Huna as saying, “Whoever knows that the other generally greets him, should greet him first, as it says, ‘Seek peace and pursue it.’ If the other gave him a greeting and he did not return it, he is considered a thief, as it says, ‘For you have devoured the vineyard, and the theft of the poor is in your house’” (Yeshayah 3:14).
Likewise, the term is used by Rav Chanina bar Pappa (Berachos 35b) regarding someone who eats and does not recite a blessing. It is considered as if he stole from Hashem and from knesses Yisrael. And the term is used in Sanhedrin (91b): “Whoever prevents a student from learning Torah, it is as if he stole his inheritance from him.” In both of these instances, no actual item is being taken and benefited from.
The Midrash Tanchuma (Bamidbar 27) also uses the term to describe someone who quotes a halachah and does not quote the name of the one who said it, in violation of the verse “Do not steal from the destitute for he is destitute” (Mishlei 22:22). The Midrash traces this back to the zugos, and ultimately traces it back to Moshe Rabbeinu from Har Sinai.
Similarly, in a Tosfos in Kiddushin 59a, Rabbeinu Tam’s father, Rav Meir, is quoted as understanding that in a case where fisherman A set out his net and fisherman B afterward set out a net nearby with a dead fish inside (to attract more fish), it is considered as if fisherman B stole from fisherman A–even though the fish had not yet arrived. (Fishermen: please note the fishing advice from Rabbeinu Tam’s father.)
We see that the term theft is used more loosely than as defined by Rav Wosner. There is also a responsum from Rav Zalman Nechemia Goldberg, shlita, printed in the Av 5762 edition of Koveitz Beis Aharon V’Yisrael that the case in Berachos 6b (regarding one who does not return a greeting) is considered theft only because it is the negation of a debt. Even though the debt is non-monetary in nature, it is still considered a debt, and the negation of this debt thus falls under the rubric of theft.
Our organizations need to raise money, but if it is done in a manner that is against the custom or law, then it very well could constitute something akin to stealing. It would seem that there should be an opt-in option before our organizations embark upon robocall campaigns. At the very least, organizations should pose the question to a posek and inform that posek about the legal issues discussed above.
The author can be reached at Yairhoffman2@gmail.com.