Genealogical privacy issues

Reader Nanci is thinking about starting a blog about her family history and, as she thought about it, she had a question:

“My main question for you is about privacy and the use of names,” she wrote. “I’m not sure if I should just put my first name and then refer to relatives/ancestors only by first names, or what is the legal or just smart thing to do?”

Great question — and a real, persistent, major concern in genealogical circles.

P

Here, as far as The Legal Genealogist is concerned, is the bottom line: as genealogists, we need to protect the rights of the living.

Generally, under the law in the United States, with the major exception of medical information, the dead have no right of privacy.1 As stated by the late Robert Ellis Smith, a lawyer and publisher specializing in issues of personal privacy, “According to longstanding principles of common law, privacy is uniquely an individual right that expires at death (unless somehow disclosure invades the privacy of surviving family members).”2

But the rights of the living… oh, that’s a whole ‘nother kettle of fish. And it’s the one overarching principle underlying just about every code of genealogical ethics out there.

One of the plainest statements of our ethical responsibilities as genealogists appears in the Guidelines for Sharing Information with Others of the National Genealogical Society, which provide in part that all of us who are genealogists and family historians should consistently

• respect the restrictions on sharing information that arise from the rights of another … as a living private person; …

 

• inform people who provide information about their families how it may be used, observing any conditions they impose and respecting any reservations they may express regarding the use of particular items;

 

• require evidence of consent before assuming that living people are agreeable to further sharing or publishing information about themselves;

 

• convey personal identifying information about living people–such as age, home address, genetic information, occupation, or activities–only in ways that those concerned have expressly agreed to;

 

• recognize that legal rights of privacy may limit the extent to which information from publicly available sources may be further used, disseminated, or published; … and

 

• are sensitive to the hurt that information discovered or conclusions reached in the course of genealogical research may bring to other persons and consider that in deciding whether to share or publish such information and conclusions.3

The same sorts of concepts underlie the codes of ethics followed by genealogical professionals. The Code of Ethics and Professional Practices of the Association of Professional Genealogists, for example, provides that its members must agree to “(t)reat information concerning living people with appropriate discretion” and
“(r)efrain from violating or encouraging others to violate laws or regulations concerning … rights to privacy, … or other pertinent subjects”.4 The Code of Ethics of the International Commission for the Accreditation of Professional Genealogists requires its accredited genealogists to promise: “I will keep confidential any personal or genealogical information given to me, unless I receive written consent to the contrary.”5 Similarly, the Board for Certification of Genealogists requires its certified genealogists to “keep confidential any personal or genealogical information disclosed” with a particular concern for the living.6

So… what does this mean to the blogger? It means that we can freely identify and write about the dead — as long as what we write does not directly and negatively impact the living. For example, I wouldn’t write that Uncle John and Aunt Mary, both deceased, married six months after the birth of their daughter Sarah if cousin Sarah is still living and doesn’t want her birth out of wedlock disclosed to the world. I wouldn’t hesitate to write that Gerhard and Beta, my third great grandparents, married eight months after the birth of their first child, Anna,7 when Gerhard, Beta and Anna have all been dead for many years.

I don’t think a genealogical blog has to be completely anonymous — I certainly am fully identified on mine — and I don’t think we can never write about the living. But in every case we need to consider those guidelines and those ethical rules and ask ourselves the bottom line question: have I considered and am I respecting the rights of others as living private people?

Great question, Nanci. Good luck with your blog!


SOURCES

  1. See generally Kirsten Rabe Smolensky, “Rights of the Dead,” Hofstra Law Review 37: 763-802 (2009).
  2. Robert Ellis Smith, “Privacy After Death,” Letter to the Editor, The New York Times, 126 Nov 2001 (https://www.nytimes.com/ : accessed 19 Nov 2018).
  3. National Genealogical Society, Guidelines for Sharing Information with Others, PDF online (https://www.ngsgenealogy.org/ : accessed 19 Nov 2018).
  4. Code of Ethics and Professional Practices, Association of Professional Genealogists (https://www.apgen.org/ : accessed 19 Nov 2018).
  5. Code of Ethics, International Commission for the Accreditation of Professional Genealogists (https://www.icapgen.org/ : accessed 19 Nov 2018).
  6. Genealogist’s Code of Ethics, Board for Certification of Genealogists (https://bcgcertification.org/ : accessed 19 Nov 2018).
  7. A real example, by the way.
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