Privacy or, Whose Name is it Anyway?

Privacy or, Whose Name is it Anyway?

Many folks believe that the names given us by our parents can influence the type of person we become. Whether or not that is true, most of us feel our name is very personal, and an integral part of who we are. Society seems to be about evenly divided between those who want to "advertise" their name and are delighted to see it appear almost anywhere, at any time, under any circumstances, and those who believe their name is private and that it can not or should not be published without their permission.

In the internet genealogical community, those two views are represented by researchers who believe every name should be published in full so pedigrees are both accurate and complete; and researchers who believe they have an exclusive right to publish their own and their family names. Obviously, it is impossible to reconcile such disparate opinions. So which is correct? Are names private? And what are we, as creators and custodians of our family histories, to do if someone objects to their name appearing in our database or website?

U.S. privacy law derives from two sources -- the Bill of Rights, particularly the Fourth Amendment, with respect to intrusion by the government; and the Common Law, developed through court decisions, with respect to intrusion by private organizations and individuals. The Fourth Amendment protects us from "unreasonable searches and seizures" by government authority. (1)    However, the framers did not make the right absolute. They contemplated the possibility that some instrusions might be warranted and/or necessary, and therefore "reasonable", as when they are made under a warrant issued by a court. The concept of a right of privacy from intrusion by non-governmental parties emerged more gradually from court decisions, but had become part of the Common Law during the first century after the Bill of Rights (ratified in 1791) was adopted.

In 1890, future Supreme Court Justice Louis D. Brandeis and his former law partner Samuel D. Warren summed up the law at that time in an article for the Harvard Law Review deploring the journalistic excesses of the period, when the most intimate details of personal lives were published in the periodicals of the day to "satisfy a prurient taste." They suggested the law should recognize an individual's right "to be let alone". But they included two important exceptions to that right: (2)

1) The right to privacy does not prohibit any publication of matter which is of public or general interest.
2) The right to privacy ceases upon the publication of the facts by the individual, or with his consent.

Those exceptions reflect the general state of the law today, i.e. there is no protection for information that is either a matter of public record or was voluntarily disclosed in a public place.

Justice Stewart opined in KATZ v. UNITED STATES, 389 U.S. 347 (1967): (3)

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.

Justice Harlan concurred in the opinion, but went on to explain:

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, 265 U.S. 57 (1924)

In other words, if we tell our best friend in the privacy of our home that we had a face lift five years ago, or nudged our golf ball out of a sand trap last week, if that friend is as good a friend as we think s/he is, we have a reasonable expectation of privacy. But if we tell the monthly meeting of the Garden Society or Lion's Club, we have voluntarily disclosed the information publicly and an expectation of privacy is not reasonable.

As a society, we have passed laws requiring our government agencies to collect and maintain records of vital events at taxpayer expense. We expect our courts to maintain deed and other probate records to protect our property rights. Newspapers publish birth, marriage, and death announcements as a public service. We rely on the information in public phone directories to be able to contact friends and business associates, and we expect them to be able to contact us using the same resource. We proudly include our names in our parent's obituaries, which routinely include our mother's maiden name, the names of our siblings, and often much more.

Day in and day out, we divulge not only our names, but an astonishing amount of personal information to casual acquaintances and total strangers. While waiting in the checkout line, we chat about our children, where they go to school, and our recent gall bladder operation. We tell someone we just met via the internet who is a possible 3rd cousin twice removed, about Aunt Sally's acrimonious divorce and that Great Grandma and Grandpa Stewart "had" to get married. We share our unexpurgated GEDCOM with Cousin Carol, assuming she will feel the same way we do about what is "private"; and we forget that Great Aunt Martha, whose research we inherited, may have shared everything she knew with dozens of people.

Of course truly private information (e.g. your Social Security Number, financial information, and medical records) should not be shared with anyone except those with an absolute need to know. But public records and public statements are public, and a subsequent claim of privacy for that information is not reasonable.

What do you do if you object to your name (or the names of your elderly but still living relatives) appearing online in someone else's database? Contact the submitter with a polite request for removal. Remember you are asking a favor, not demanding a "right".

What if someone asks you to to remove their name from your display? While you may not be legally required to do so, consider extending them the same courtesy you would wish for were your positions reversed. You may want to ask a favor some day.

January 2006                   

(1) Amendments 1-10 to the U.S. Constitution, Bill of Rights
(2) Warren and Brandeis, The Right to Privacy
(3) U.S. Supreme Court, KATZ v. UNITED STATES, 389 U.S. 347 (1967)