Privacy and online family history

 

I may use AI, specifically Google Gemini, to assist me in research, composition, and editing of my blog post; however, the ideas and content of this blog are my own. 

One of the first things you should know about genealogy is that dead people do not have any rights to privacy. One legal example is the case of Mrs. Alline E. Cordell, Plaintiff-appellant, v. Detective Publications, Inc., Defendant-appellee, 419 F.2d 989 (6th Cir. 1969). That case held the following:

The courts are virtually unanimous in ruling that incidental mention of a plaintiff in a suit brought for the invasion of a relative's privacy is not an actionable tort. Coverstone v. Davies, 38 Cal. 2d 315, 323-324, 239 P.2d 876 (1952); Metter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 310-311, 95 P.2d 491 (1939); James v. Screen Gems, Inc., 174 Cal. App. 2d 650, 653, 344 P.2d 799 (1959); Bradley v. Cowles Magazines, Inc., 26 Ill.App. 2d 331, 333, 336, 168 N.E.2d 64 (1960); Carlson v. Dell Pub. Co., 65 Ill.App.2d 209, 213 N.E.2d 39 (1965); Kelley v. Post Pub. Co., 327 Mass. 275, 278, 98 N.E.2d 286 (1951); see Milner v. Red River Valley Pub. Co., 249 S.W.2d 227 (Tex.Civ.App.1952). Cf. Annerino v. Dell Pub. Co., 17 Ill.App.2d 205, 210, 149 N.E.2d 761 (1958) (case not dismissed because defendant published a photograph of the plaintiff, wife of the decedent against whom the complaint focused its attack).

The Court also states:

As the District Court found, this is a case of an alleged unauthorized public disclosure of private matters. Certain limitations have almost universally been imposed on this kind of tort. Prosser, Torts, § 112, at 843 (3d ed. 1964). The cause of action is regarded as purely personal, and only the person about whom facts have unauthorizedly been published may recover.  Consequently, the right lapses with the death of the person who enjoyed it,  and one cannot recover for this kind of invasion of the privacy of a relative, no matter how close the relationship.

Over the years, certain exceptions to the no privacy after death rulings have been made for commercial, medical, and digital estates. Here are three examples of statutory exceptions carving out parts of the general rule:

Codification of Post-Mortem Rights of Publicity (Property vs. Privacy)

At the time of Cordell, appropriation was still viewed primarily as a personal privacy tort that expired at death. Beginning in the late 1970s and accelerating through the 1980s and 1990s:

• The right to control the commercial use of one's name, likeness, image, and voice was decoupled from personal privacy and reclassified as a transferable property right.
• Over 25 states enacted dedicated post-mortem right-of-publicity statutes (such as California's Astaire Celebrity Image Protection Act and Tennessee's Personal Rights Protection Act) that allow heirs and estates to enforce commercial likeness protections for decades after death.

Statutory Medical Privacy (HIPAA Omnibus Rule)

Prior to federal health privacy rules, hospital records of the deceased were governed haphazardly by state law.

• Under the 2013 HIPAA Omnibus Rule (45 C.F.R. § 164.502(f)), a decedent’s protected health information (PHI) remains subject to federal privacy protections for 50 years following their death.

Digital Estate Laws (RUFADAA)

Because the common law in 1969 did not envision digital identities, cloud data, or online accounts, the Uniform Law Commission introduced the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2015.

• Adopted in almost every U.S. jurisdiction, RUFADAA prevents estates and fiduciaries from automatically accessing private digital communications (emails, direct messages) unless the decedent explicitly granted consent in an estate planning instrument or via an online legacy setting.

What this means for genealogists is that an unhealthy attitude toward privacy risks work being permanently lost upon their death. Even more importantly, excessive privacy restrictions often mean researchers spend years duplicating work that others have already completed. We share our genealogy for the simple reason that we share a common ancestry with all our cousins.