The illusion of Privacy

The recent news stories are full of accounts and opinions about the surveillance of U.S. cell phone records. One such story in the Deseret News is entitled "Addressing the illusion of digital privacy." I would extend this concept to all of those areas currently considered "private" and say that there is a general illusion of privacy and that in most practical areas, despite our most cherished beliefs, privacy does not now and never has existed, at least in the way we most commonly think it does.

So what is privacy? Generally, in the United States, privacy includes the U.S. Constitution's Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing. See Wikiepedia : Privacy laws in the United States. You might notice that there is nothing here touching on electronic communications using public carriers. You might also notice that financial, economic, and other related topics are entirely missing.

Genealogy is a very good example of the interface between the illusion of privacy and what is and what is not considered private. Privacy is best understood as dealing more with the mores of societal culture than any real "right." It would seem to be such an obvious fact, but seldom mentioned, that what people believe to be a right is nowhere codified as such. In other words, there are very few laws that address the issue of privacy. For genealogists, the issue of privacy is mostly reduced to access to records. The general rule, not codified as I mentioned, is that privacy extends to living people and not dead people.

Despite the public outrage at the actions of the Federal Government in accessing cell phone records, it has been pointed out with each news article that the practice is apparently fully legal. What most of the people who are outraged over this invasion of their privacy fail to understand is that public communications are not private. In other words, when I communicate with someone else, to that extent, my communication is no longer private. Whatever we may think is covered by our "right to privacy," that so-called right can be compromised any time the public interest deems it necessary. For example, the subpoena power of court discovery is practically limitless depending on circumstances.

This illusion of privacy is even more illusive online. Once you commit your communications to the Internet, you no longer have any expectation that the information found there is in any way private or limited. Whatever you put online, whether marked private or not is open to discovery. What you think about privacy is totally irrelevant to the reality. So let me give some examples.

Genealogist Doe puts his family tree online. But some of the facts are "personal" and he considers them to be "private." He marks them as private but still allows the information to go online. Guess what? No privacy. The act of putting the information online waives the privacy issue.

Genealogist Roe puts her family tree online but marks all the living people as "Living" and does not supply any information about her living family members. She smugly thinks she has "protected" her family's privacy. Wrong. Anyone with the slightest interest in Roe's family could find out all the information they cared to review in a matter of minutes. Almost all the records recorded by modern business and government entities are fully discoverable online. For a few dollars, anyone with a few connections, can obtain exhaustive information about anyone in the United States. Just because genealogists do not have these online tools readily accessible does not mean that they do not exist. I have written a few times in the past about the ease in finding out current information about anyone in the United States. Attorneys, credit agencies, law enforcement agencies, banks and financial institutions, insurance companies, government agencies and many other entities have almost immediate access to this type of record.

Genealogist Doeski's family came from a country outside of the United States. Everyone in her family had to have a government issued identity card and couldn't even buy food without presenting the card as proof of who they were. She is amazed at how "free" the society is in the United States. You don't even have to have permission to move from one state to another, you can just pick up everything you own and move where ever you wish. This situation is not an aspect of privacy. Freedom of speech and assembly are not rights of privacy. People also mistake the ability to hide their identity or to live "off the economy" as the right of privacy. It is true that people can disappear. But what I am talking about here is whether or not, when we commit our communications to the airwaves or Internet we have any expectation that those communications are somehow protect from discovery or invasion by others.

Because we primarily deal with dead people and since dead people have no privacy, little of what is going on today in the realm of privacy directly affects genealogy. The most impact is from statutorily created "privacy" areas that limit access to public records. These limitations provide a barrier to some kinds of research but, as I already pointed out, are not an absolute ban.