How do "privacy laws" impact genealogy

At a recent seminar, I had an opportunity to speak with Janet Hovorka of Generations Maps who writes a Blog entitled, "The Chart Chick." (Aside, check out the fabulous charts and other publications that Generation Maps can print for genealogists). Janet asked a question about the application of privacy laws to the issue of printing charts and subsequently the issues of putting information online. As a result, I decided that this was an interesting topic.

Privacy is essentially a cultural phenomena. Public discussion of certain topics is considered either appropriate or taboo depending on the cultural context. For example, what is discussed in a home may be considered inappropriate in a more public context. Likewise, what is said to a lawyer, a doctor or a religious leader could be considered protected from even legal discovery under some circumstances. So, before getting into any legal discussion of privacy, it is important to recognize that very little of what we consider to be private actually is considered to be legally private.

Let's use the example of a Social Security Number. Many people would consider their Social Security Number to be "private information." However, nothing could be more public. There are too many circumstances to enumerate where it is mandatory to provide your Social Security Number. Failure or refusal to do so can have a multitude of results from failure to obtain a loan or financing or failure to allow enrollment in many government programs. Failure to provide a Social Security Number to a prospective employer could result in the employer's refusal to offer a job. So how is a Social Security Number private?

What if I published someone's Social Security Number in a genealogy post online? Other than being stupid, would I be violating some privacy law? Misuse of the number might be a criminal act but merely revealing the number to the public is not a breach of any privacy law I am aware of. Driver's licenses, mailing labels, and sometimes publicly posted progress reports at universities often use Social Security Numbers. In this context, privacy is not an issue. For further information see Computer Professionals for Social Responsibility.

So what is privacy? As you can see so far, this is not a cut and dried subject. Common belief is rarely supported by any specific legislative mandate. At the core of the so-called privacy issue is the question of the availability of information, not just private information but any information. There is always a balance between privacy and society's interest in protecting itself from danger. The wrong kind of privacy law could protect not only your medical records but also protect a potential terrorist from detection.

Although everyone seems to know what is and what is not "private" the real definition is hopelessly complicated. One Federal law is called the "Electronic Communications Privacy Act of 1986"  18 U.S.C. § 2510. The Act protects wire and oral communications from disclosure except by duly issued warrants, that is it limits wire taps. Another Federal Act called the "Family Educational Right to Privacy Act (Buckley Amendment)" 20 U.S.C. Section 1232g, protects the privacy of student education records.  There are very few such acts and none of them pretend to define "privacy."

So, after all that, what is privacy and how is it protected? If the information published is true and factual, then it would not even be subject to defamation laws. Does this mean you can publish "private" i.e. personal information about anyone living or dead without any concerns? No. It is always best not to publish any information about living persons without their permission. Does that include printing out a family group record or pedigree chart? It depends on how widely the information is disseminated. For example, ordering a chart from a printing company would not likely violate anyone's privacy. Here are some general guidelines:

Don't publish information about living individuals on a public database.
Ask permission before putting any information about living individuals online public or private.
Do not reveal family secrets or any other embarrassing information online.
Do not publicly post photographs with identifying personal information of living people.

It would be highly unpredictable of the consequences of violating any or all of these guidelines. They are just that, guidelines. In every case, whether to post information or not is a judgment issue.

As usual, comments and questions are welcomed. Please be aware that nothing in this post should be considered legal advice for any particular personal issue or question. The opinions are those of the author only.