Sunday, February 9, 2014

Privacy in Family Trees -- Dealing with Disagreement

A recent blog post on privacy in family trees elicited more than the usual spate of comments. Compliments are always welcome but not much use to further writing. Disagreements are always fodder for further discussion. As a trial attorney, I am abundantly use to people disagreeing with me and have come to expect it. The comments raise a multitude of issues which were either not covered in the original post or need clarification and supporting arguments. As they used to say on the old TV show, "You Asked For It."

Here is a list of comments in the very altered form of questions:

  • Does anyone have any privacy left to protect?
  • Are the presence of privacy issues raised by an individual a matter of the level of education or sophistication of the individual?
  • Are those who use the Internet regularly less or more likely to be concerned about privacy?
  • What kinds of information are truly "private" and who decides? (This question is in the context of drivers licenses, Social Security numbers, birth and marriage certificates, names, addresses, telephone numbers etc.)
  • Is there a difference between privacy as a legal concept and privacy as a part of the dominant culture?
  • Should we be concerned about what is and what is not socially acceptable when the issue is privacy?
  • Should we judge levels of privacy by the feelings of the most sensitive person?
  • Should we avoid including information in our family trees because someone will be offended and claim that the information is "private?"
  • Disregarding legality, is there any area of human behavior and life that is really private?
  • Should we maintain information about living people in our online family trees, with or without assurances from the host of the family tree that they will protect the "privacy" of living people?
  • Are online family trees so inherently unreliable that privacy concerns are somewhat ridiculous?
  • Are there verifiable facts that should be omitted from family trees out of fear that someone will object?
  • Does the controversy over the Social Security Death Index have anything to do with privacy?

Some of these questions have similar answers. But from my perspective there are some over riding issues that make many of them moot. I can summarize the whole issue as follows:

What legitimate privacy concerns are there in entering information in family trees and how much, if any, information about living people should be made available online by anyone other than the individual affected?

This might take a few days to complete but here is the list of questions with my answers:

Does anyone have any privacy left to protect?
This seems to be an emotional question rather than one that has a real answer. But there is a core of truth in the answer. Yes, there are many legitimate and legally protected privacy issues. But it is important to realize that anyone can voluntarily give up any or all of their privacy either knowingly and voluntarily or through ignorance or lack of concern. 

Are the presence of privacy issues raised by an individual a matter of the level of education or sophistication of the individual?
Yes. But overall, the whole concept of privacy is entirely of cultural origin. Individuals from some societies would think us extremely liberal and some would think us entirely too restrictive. Age is more of an indicator of the level of concern about privacy than any other factor in the United States and especially online. 

Are those who use the Internet regularly less or more likely to be concerned about privacy?
This is the kind of question I wish someone would pay me to do a study on. The answer is so obvious that it hardly merits response. Yes, those who use the Internet regularly are less likely to be concerned about privacy.

What kinds of information are truly "private" and who decides? (This question is in the context of drivers licenses, Social Security numbers, birth and marriage certificates, names, addresses, telephone numbers etc.)
Well, I do not consider any document created by any government to be "private." That includes Social Security numbers and everything else. I have to show a driver's license to rent a car, rent a hotel room or whatever. My Army Serial Number and my student number at the university were both my Social Security number. My telephone, even when unlisted, was about as public as could be imagined. None of this information, in my opinion, should have a shred of privacy protection. The problems supposedly caused by identity theft are not solvable by worrying about what information should go into a family tree. I do not know anyone who thinks it is necessary to list Social Security numbers of living people in family trees.

Is there a difference between privacy as a legal concept and privacy as a part of the dominant culture?
Yes, definitely. Privacy laws are extremely narrow in their scope and application. The laws people associate with privacy really pertain to theft, fraud and related crimes. I you were to steal someone's credit card or credit card number and use it to purchase something for yourself or for other purposes, this is credit card fraud, although some count this as "identity theft." In reality, the term "identity theft" is so broadly applied as to be meaningless. To some extent, our legal system reflects our dominant culture as it existed 100 years ago. Laws change much more slowly than the underlying culture they are supposed to protect. 

Should we be concerned about what is and what is not socially acceptable when the issue is privacy?
Yes, especially online and as genealogists. Social acceptance is not a negative. It is positive value. However, if the social conventions of the times disagree with other more basic considerations such as survival and religious beliefs, then mere adherence to social conventions is not enough. You need to be true to your religious heritage as long as it is reasonable and not destructive. 

Should we judge levels of privacy by the feelings of the most sensitive person?
In law, this concept is called the "eggshell skull case." In other words, the most vulnerable members of our society need to be protected. But if we go around worrying that we are going to offend the sensibilities of someone or another, then we are being unrealistically sensitive ourselves. 

Should we avoid including information in our family trees because someone will be offended and claim that the information is "private?"
No. This is really the same question as that above. My rule is and always will be "If you want something to be private, don't put it online." The realistic part of this rule is do not put anything online about living people without their clear consent. But if they are already online and you merely incorporate what they have already put online about themselves or link to it, they have no claim to privacy whatsoever about the information. To me, anything already online is fair game. 

Disregarding legality, is there any area of human behavior and life that is really private?
Hmm, watching TV commercials I would guess not. Privacy is really very relative to the time, place and individuals involved. What may be private for some places and times, is perfectly acceptable in other places and times. For example, how many of us sit there and blog in our underwear or pajamas? 

Should we maintain information about living people in our online family trees, with or without assurances from the host of the family tree that they will protect the "privacy" of living people?
See my answer above about putting things online we wish to keep private. I don't really care what the policy of the online host is if I don't put anything truly private online. 

Are online family trees so inherently unreliable that privacy concerns are somewhat ridiculous?
Yes. But see the same rule I have now repeated twice. 

Are there verifiable facts that should be omitted from family trees out of fear that someone will object?
This is almost exactly the same as a previous question. The same answer applies. But facts are facts and changing history because of concerns about politics, religion or any other reason is totally unacceptable to me. Without this rule, history is nothing more or less than propaganda. 

Does the controversy over the Social Security Death Index have anything to do with privacy?
Despite any an all of the arguments about dead children and Social Security numbers, this issue does not deal with privacy. This issue is entirely one created by an unwillingness of the U.S. Internal Revenue Service to implement rather easily done measures that would cure the entire problem. For example, merely check any Social Security Number submitted against the SSDI and that would end 99% of that particular problem. Why they will not do this has nothing to do with privacy, it is entirely political and has to do with who runs what in the government. 

Well, instead of addressing each comment individually, I thought this might work. Of course, if you have more comments, then I will have more to write about. :-)


11 comments:

  1. Thank you for this post, James. I will need to read it again, it is quite thought-provoking.
    What struck me however are two things: The remark about official documents not really being private and your thoughts about social acceptance.
    There is also the whole theme about what our ancestors would have considered "private". Or not.

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    1. Whether or not someone can view an official government document is not decided by the individual. Therefore, there is no expectation of privacy at all.

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  2. James I agree with you on Social Security Number's but I think that "random" number of digits has nothing to do with privacy for anyone dead or alive. In Sweden you can call and get the "personnummer" for any person that do not have a protected identity . They can not send it by email. The problem is that the system relies on that the number is only known by the person who got it, That has to be fixed. I just wait for some hacker to steal 100 000 000 numbers.

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    1. That's really interesting. Thanks for the comment.

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  3. OK, since I've had a go at this too (as part of http://parallax-viewpoint.blogspot.com/2014/01/revisionism-in-genealogy.html), here's a question for you, James, that touches on both law and genealogy:

    Suppose someone had been given a new identify after testifying against some organisation. If a clever genealogical researcher were to find their new identify, should they treat it as private, and should this be for legal, moral, or safety reasons?

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    1. There may be legal and other considerations if a new identity has been compromised. I would think for their own protection, the researcher would not want to compromise a witness, assuming, of course, the person was still alive.

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  4. And the follow-up to this, which I already mentioned [identifying someone's estranged spouse], is where the new identity was a personal choice rather than something with legal considerations. That person's life may still be put in danger. Surely this must answer the question of whether privacy issues really do exist James.

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    1. Your hypothetical could take some time for a response. First, from a legal standpoint, you are not talking about privacy. You are talking about confidentiality. The relationship between the parties if married is a legal relationship. For example, a protection order has nothing to do with privacy, it has to do with preserving the peace. When a person is "given a new identity" it has nothing to do with privacy, it has to do with protection of person. Confidentiality does not equal privacy. Sorry.

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  5. Not sure I agree there James. Confidentially might apply if the researcher was one of the parties involved, but I'm talking about some clever researcher who uncovers the new identity/location of someone else in their tree (or even in a client's tree). They haven't broken any laws by analysing available evidence and reaching a conclusion, and the new identify/location of the person wasn't the result of some court decision. It therefore comes down to a personal decision by the researcher, who may or may-not be aware that there's a potential risk to that person's life.

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    1. I guess my question here would be why is the genealogist researching a living person so thoroughly? If the records you refer to are available to a researcher, then they are not private, are they? I see a real distinction between governmental or court ordered confidentiality and privacy as a concept. For example, may courts now order adoption records sealed. Is this a privacy issue? Whose privacy? The birth parents or the child's? It really has nothing to do with privacy at all. It has to do with a complex social and political issue involving the adoptive parents.

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