Some people eat, sleep and chew gum, I do genealogy and write...

Saturday, February 27, 2016

Do Genealogists face ethical dilemmas?

The question in the title to this post implies two additional questions, are genealogists per se bound by any rules of ethics and do those ethical rules create dilemmas? Whether or not I am a genealogist, I am subject to the laws of the United States of America, simply by virtue of the fact that I live in the United States. Additionally, I may have some general personal ethical standards that restrain me from plagiarizing the work of others. At the same time, my observance of the law also restrains me from committing any other illegal act such as violating someone's copyright. In fact what is even more important to me personally, I live in a social, religious and cultural system that imposes numerous restraints on my beliefs and conduct.

In addition, my personal system of beliefs and conduct may or may not be exactly the same as the general rules and laws of the society in which I live. There are many things in our society which are entirely acceptable and "legal" that I do not accept into my personal conduct or standards of conduct or if you insist, my personal ethics. For example, many people eat and drink substances that I cannot and will not eat or drink based on my own personal beliefs. I also have a code of ethics that differs considerably from that commonly adopted by members of our society. As a result, I face many difficult ethical choices not shared by my surrounding community.

Ethics is a system of moral principles. Observing or not observing a governmental law may or may not violate a person's ethics. For example, there is a law against flying a quadcopter of a certain type into the air over 400 feet high. If you owned a quadcopter and flew it 401 feet into the air (assuming you had some way to determine how high your quadcopter was flying) you would technically break the law. Is this an ethical issue? Again, it may or may not be depending on your particular sense of ethics. Have you gone faster than the posted speed limit anytime in the past year? Did this become a moral or ethical problem for you?

These may seem like trivial examples, but if we are going to start talking about what is and what is not ethical as opposed to what is and what is not legal according to our local, state and national laws, then we need to understand what we are talking about.

The question raised here is this: is there a particular code of ethics imposed upon or adopted by genealogists that is more restrictive or different from that of the general population of the United States of America? I ask this question because for most of my life, I was very specifically restricted in certain ways by the Arizona Rules of Professional Conduct on Attorneys imposed by the Arizona State Supreme Court. What was and what was not ethical for me to do as an attorney was closely proscribed by these rules and enforced by the Arizona State Bar Association and the courts. I can say with absolute certainty that many of these provisions had nothing to do with my day to day conduct as an ethical member of the society in general and some of the provisions were illogical and sometimes inconsistent. Even if I did not personally agree with the provisions, if I wanted to practice law in the State of Arizona, I was bound by the Rules. Period.

Let me give you an example of how the Rules of Professional Conduct (ethical rules) worked. I once represented a man who was accused of the crime of leaving the scene of an accident. The statute that made this activity illegal, i.e. punishable by a fine or imprisonment or both, depended on the monetary damage of the property and whether or not there were any personal injuries. Let's say the limit was $500. So if you had an accident and left without filing a report or calling the police and you got caught and there was more than $500 worth of damage, you were in violation of the law. OK, so my client had left the scene of the accident after hitting a section of fence on the Phoenix airport property. However it happened, the police identified my client as the one who hit the fence. In fact, my client admitted to me that he hit the fence and then left the scene. I assumed it was because he was drunk and did not want to face more serious charges.

So, we went to court for his trial. The prosecuting attorney got up and presented his case. He then rested his case and sat down. I made sure he had rested his case and then made a motion to dismiss the complaint because the prosecutor had failed to prove the amount of damages incurred by the airport's fence. The judge agreed with me and dismissed the case. Now, what were the ethical problems this example presents? One of the most common questions I had throughout my long legal career was how an attorney could represent a criminal in court when they knew the criminal had committed the crime. Was I being unethical to let that poor prosecutor get all the way through his case without proving up his client's damages? To the contrary, I had a specific ethical duty to represent my client and say nothing about the prosecutor's case until he was finished. In addition, I would have been violating my own very specific ethical duty had I failed to make the motion to dismiss the complaint. In fact, at this point, the prosecutor was arguably negligent and had this case been more than a minor traffic matter, he would possibly have been liable for sanctions from his client or the court.

What does this have to do with genealogy? Let me repeat, we have no separate, definable set of ethical rules that apply only to those who practice genealogy. In fact, we have no generally accepted definition of who is and who is not a genealogist. In fact, we have some people who refer to the whole topic as "family history" and do not acknowledge the need for "genealogists" at all.

Do I or does anyone have a right to impose their own personal standard of morality on me simply because I am a genealogist? OK, so let me give another example in the form of a hypothetical situation. Let's suppose I am sitting in a class and the presenter or teacher or whatever is showing me his or her Microsoft PowerPoint presentation about genealogy. As I view the slides, I quickly write down all of the content of each slide in my notebook. Do I have some sort of ethical obligation to refrain from taking notes about the presentation? Have I violated any laws? Have I committed plagiarism?

OK, so now let's vary the hypothetical a little. Suppose instead of taking notes with a pen or pencil, I whip out my smartphone and take photos of the slides? Have I now stepped over some legal or ethical boundary?

What if I use the video function of my iPhone or whatever and video the whole presentation including the slides? Have I now violated any laws or ethical rules that I should have been aware of?

Let me ask the question again a little differently: have I violated some genealogical ethical rule? Now I can answer the last question. My answer is simple: there are no specific ethical rules that apply only to genealogists so I could not have violated any such rule.

Whoa. Aren't there plagiarism and copyright issues with this conduct? So what? These are general rules that apply to a much larger community than just genealogists. Additionally, they are the subject of a huge body of law and discourse. Oh, did I mention for the purposes of my own hypothetical that the person taking the photos etc. was NOT a genealogist at all but merely there because his mother made him go to the class?

So part of the answer to the question in the title of this post is yes, genealogists do face ethical dilemmas but none that have anything to do with the fact that they are genealogists. Time to repeat another statement: there is no generally accepted definition of a genealogist. So we who claim to be genealogists are really entirely on our own to determine what is and what is not ethical. Are we on our own to determine what is legal? Hmmm. That is another question altogether.

Copyright is not at all like my quadcopter flying law example. There are no specific definitions of what is and what is not a copyright violation. In fact, there are no statutes defining the idea of "fair use." Fair use is a court (judge) made doctrine and not a law at all. So back to my example of the presentation and my iPhone. If I make notes isn't that fair use? If I take a few photos of slides instead of writing it all down, isn't that fair use? If I video the whole presentation, isn't that fair use? Can you answer that string of questions and support your answers with citations to federal court cases? Do you realize that that is exactly the type of question a lawyer might have to answer on a Bar exam to gain admittance to the practice of law?

The real answer to the questions is that there is no answer to the questions. If my opinion differs from your opinion and you happen to be the instructor and you sue me for copyright violation, we might finally know the answer about this very limited set of questions. But the next set of questions that come up puts us right back where we started.

So was my note taking plagiarism? There is no answer here at all, lawsuit or no lawsuit. Plagiarism is an ethical consideration.  Unless there was a Genealogy Bar Association that said unless you play by our rules, you cannot play, then there is no one who can answer that question. What if we sent out a zillion questionnaires to genealogists (whoever they are?) across the world and asked them all to vote on the answers? Would that settle the issue? No. Because I can determine my own ethics. Say, hypothetically, that I used your slides in a publication that I was writing for as a professor at a university? Could I lose my job? Well, yes I could. But then again, I would then be operating in a structured environment with rules that I probably understand.

I guess my real question is this: do genealogist face any ethical dilemmas in writing about genealogists who face ethical dilemmas?


  1. In the case of speakers at conferences, I think they should announce that photos of slides or videos of the presentation are not allowed if they don't want us to use our phones to save the trouble of taking notes by hand. Simple solution. Make it well known.

  2. I would suggest you are conflating separate issues here.
    You start off by questioning ethics but drift into a discussion about copyright and plagiarism.

    If we leave copyright out of the picture as it is covered by law and is therefore binding on the whole population and ignore plagiarism as it is basically an academic issue and concentrate on ethics the argument splits into two parts.
    1: Deontological ethical systems, i.e. those which follow rules
    2: Normative ethical systems, i.e. systems based on whether an action is right or wrong, based on its merits.

    The first part deontological ethical systems is easily dismissed because as you point out there are no rules in genealogy, but the second part, normative ethical systems, is more complex as it is based on ones own values and beliefs.

    I would say that yes genealogists do face ethical dilemmas, but genealogists as a group are not bound by any set rules of ethics.
    Each genealogist his to justify to himself or herself the rights or wrongs of their action.
    Do those ethical rules create dilemmas?
    Yes of course life constantly throws up ethical dilemmas which we answer to our satisfaction everyday.

    That does not mean that the standards one person sets is right and the standards another person sets are wrong just that they are different.


    1. Right and wrong are slippery terms and not much use in a discussion about ethics. Your terminology is probably better than mine, but I think we come to similar conclusions. The "conflating" is done by most of those who discuss this issue online. I have no problem separating what are legal issues from ethical ones.