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Unsealing divorces in New York

by Kenneth H. Ryesky May 7th, 2014 8:15 pm

Col. Holland Sackett Duell was a noted New York lawyer, decorated military officer, politician, and yachtsman.  The Colonel's life was interesting; sufficiently interesting that author Christopher Madsen now aspires to write a biography of him.

 

Duell was twice married, first to Mabel Halliwell and then, after his divorce from Mabel in 1925, to Emilie Brown.  As with other divorces in New York, the court of Duell's divorce from Mabel is sealed.  Section 235 of New York Domestic Relations Law basically seals the court records of all matrimonial actions for one hundred years, absent a court order issued for good cause.

 

Madsen, having been rebuffed by the Westchester County Clerk in seeking access to the file, brought a proceeding for a court order, claiming that the book he seeks to write will be "an academic work of historical importance," and speculating that information sealed in the divorce case file might contain some facts of public interest for his tome in the making.

 

The last of Holland and Mabel's children died in 2003, and Madsen's petition to the court was unopposed.  Nevertheless, Justice Francesca E. Connolly denied Madsen's petition for an order to unseal the file.  Madsen v. Westchester County Clerk, 2014 N.Y. Misc. LEXIS 1899, 2014 NY Slip Op 50675(U) (Sup. Ct., Westchester Co. 2014).

 

The statute was last tweaked by the New York State Legislature in 1979, way back before modern text media technology altered the personal privacy scene.  Even then, the statute provides that the only information about a sealed matrimonial case file to be made available to a curious member of the public is a "certificate of disposition" which effectively says only that the divorce (or child custody decree) was granted; evidence and testimony are shielded for 100 years absent a compelling reason.

Justice Connolly* wrote in her opinion:  "[F]ishing expeditions into sealed records should not be permitted; rather, a petitioner seeking access to sealed records must be able to articulate and particularize the relevance of the information sought to an important pending matter.   ...  Public officials charged with safeguarding records containing the intimate details of litigants' lives bear a 'heavy responsibility'  ...  By sparingly exercising their discretion to permit access to these records, courts promote an atmosphere of privacy for litigants that encourages open and honest disclosure in the context of matrimonial litigation."

Justice Connolly did not consider Madsen's literary pursuits sufficient reason to unseal the record, even though the divorcing couple and all of their children are now deceased and would not suffer embarrassment from the disclosure.

The New York scheme, then, strikes a balance between the free flow of information and the need for privacy.

Madsen will just have to wait until 1925 to write about whatever lurid details attended to the Colonel's divorce.

 

[*  In New York, the lowest courts of general jurisdiction are the Supreme Courts, to be found in each county; the jurists who sit on the benches wearing the black robes are invested with the title "Justice" and not "Judge."].

 

 


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What's Behind the Adoption?

by Kenneth H. Ryesky April 23rd, 2014 10:18 am

 

 Arnold Levien was an accomplished engineer, and perhaps more accomplished still as a real estate investor.  At the time of his death in 1979 he was a multimillionaire, and his Will established a Trust of which his children and/or grandchildren were income beneficiaries, pending the Trust's termination.  The terminating event for the Trust was the attainment of age 35 of the last of his surviving great-grandchildren who was alive on the date of his death.  Upon termination, the Trust principle was distributable to Arnold's surviving great-grandchildren.

 

The trustees of the Trust were empowered, in their absolute discretion, to invade the principle for early distribution to an income beneficiary on account of "serious illness, misfortune or other emergency affecting any such beneficiary."

 

Two of Arnold's grandchildren, Stephen and Harlan (apparently neither of whom is anything resembling a slouch in his own right), are afflicted with muscular dystrophy.  Neither has sired any biological natural children.  Their respective (and apparently coordinated) requests to the trustees for early Trust principle distribution on account of their medical situations were rebuffed; they sued the trustees.  The lawsuit was settled in July 2012 by agreement giving Stephen and Harlan each a six-figure cash payment, in return for which, they "relinquish all rights as beneficiaries of income and/or principal of the Trust" and would "make no further requests of the Trustees for income or principal."

 

As will be discussed shortly, the settlement agreement had a gag clause prohibiting its terms from being disclosed to others.

 

In October 2012, Stephen and Harlan each respectively adopted an adult son, said adoptions having been validly formalized in Texas courts.  Apparently, one of the adopted sons is older than his adoptive father.  The Trustees of the Trust were apprised of these adoptions shortly thereafter.

 

In February 2013, the last of Arnold's surviving great-grandchildren alive at Arnold's death attained the age of 35, thereby terminating the Trust.  Kenneth Ives and Parvin Johnson, Stephen and Harlan's adoptive sons (this Kenneth not to be confused with Kenneth Levien, one of the trustees, nor with the author of this posting) claimed their respective shares of Trust principle as Arnold's great-grandchildren (each share being worth in excess of a million dollars before taxes), and the trustees of the Trust sought declaratory judgment that Kenneth and Parvin were not entitled to shares of the Trust as Arnold's great-grandchildren.

 

In a verbose ruling [Levien v. Johnson, 2014 N.Y. Misc. LEXIS 1802, 2014 NY Slip Op 30995(U) (Surr. Ct. N.Y. Co. 2014)], the New York County Surrogate's Court dealt with the Trustee's relevant contentions as follows:

 

A.  Arnold did not intend to benefit non-biological descendants:  The laws of New York (and other states) recognize offspring by adoption on par with biological offspring, and Wills are so construed unless a contrary intention is specified.  No contrary intention on the part of Arnold was specified in his Will, and none was otherwise proven.

 

B.  The adoptions were unique and unforeseeable if not a sham:  Adoption is specifically recognized as a valid method of creating parent-child relationships under the laws of New York (and other states).  Adoption is foreseeable and, inasmuch as no misrepresentations were made to the Texas courts in the course of the adoption proceedings, the adoptions were valid and not sham.

 

C.  Stephen and Harlan had a duty to disclose their anticipated adoptions to the Trustees during the course of the settlement negotiations in the prior lawsuit:  No such duty was shown, and, even if it did exist, it would not affect the status of Kenneth and Parvin as adoptive children of Arnold's grandchildren.

 

D.  The distributions of principle to Kenneth and Parvin would circumvent the settlement agreement in the prior lawsuit:  Though the settlement agreement was intended to bind the "heirs, executors, successors, and assigns" of Stephen and Harlan, it did not in any way affect Stephen and Harlan's rights and capacities to adopt.

 

 

And so, if this court decision stands, Kenneth and Parvin will get their shares from their adoptive great-grandfather's life labors.

 

But the Court did not dismiss the trustees' claims against Stephen and Harlan for breach of contract.  The trustees contend that the only way Kenneth and Parvin could have learned of the terms of Arnold's Will was through Stephen and Harlan; Kenneth and Parvin contend that they knew that information before the settlement agreement was entered into.  On the disputed facts, a trial is necessary, and dismissal on motion is inappropriate.  Never mind that Arnold's Will, having been duly probated, is a matter of public record.

 

The foregoing is an abbreviated synopsis of a very wordy judicial opinion; the reader is free to read the original opinion if he or she so desires.

 

Never mind that there obviously was a scheme involved here, the propriety of which shall not now be taken to the mats.  The decision in the case brings forth some questions hitting at the intersection of genealogy and privacy.  What are the uses and misuses of adoption?  How, if at all, should adult adoptions be treated differently than infant adoptions or pre-teen adoptions or teenager adoptions?  How open or private should side deals behind adoptions be? 

 

Regardless of whether or not this particular court decision stands (the dollars at stake here may well be impetus for an appeal), these questions will likely be reprised somewhere, at some future time, in some form.

 

 

 

 


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Facebook Group Privacy

by Bradley Jansen April 22nd, 2014 11:48 am

Probably like many other genealogists (fellow amateurs as well as professionals) who are on Facebook, I'm in several genealogical groups (mostly geographic based on counties in the United States or provinces abroad).

I've been impressed with the privacy-consciousness of many of the groups.  In particular, I'd like to single out for praise the "Southern Maryland Families" Facebook group which has this message pinned by moderator Wanda Simmons as the top comment:

PLEASE READ THIS NOTICE CAREFULLY: To every member - while we strongly encourage everyone to reply to all discussions and share family history/lineage information with others here in this group, we ask that everyone please be aware of the privacy act laws and sensitivity issues when posting family history information. You cannot publically (and that includes here within our group) display a full month/day/year birthdate for anyone born after 1940 or if they are living. We do not want to invade anyone's privacy or break any laws. As with everything else we do in life, here we have a few rules and regulations to abide by and to watch out for when posting. Please, still feel free to continue to share family history in abundance, just as long as everyone is aware of and follows these very few but very necessary rules we will be fine. Thank you in advance for your cooperation and understanding with this matter. If you have any questions in reference to this post, please contact me. Have A Nice Day!

The moderators and, well, traditions and customs of many of the other groups have shown a laudable respect for protecting the privacy of living people.  This consciousness is much more important in the digital age.

So again, thanks and kudos to Wanda (who gives "all the praise and credit to our group members for holding to this thought/golden rule each day as they are posting and sharing their information"), and let's do what we can to make sure this understanding of the importance of privacy becomes more uniformly enforced within our community on Facebook and the rest of the digital world!


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HHS Says Lab Results Empower Consumers

by Bradley Jansen February 6th, 2014 1:15 pm

Time to renew the 23AndMe access to lab tests fight!  Background from previous posts here.

As most readers here are familiar on hand of the government (in this case the Federal Trade Commission Food and Drug Administration) has stopped consumers from getting genetic medical test results.  Now another hand of the government, this time the US Department of Health and Human Services (HHS) clarifies in a final ruling February 3:

"The right to access personal health information is a cornerstone of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule," HHS Secretary Kathleen Sebelius said in a press release. "Information like lab results can empower patients to track their health progress, make decisions with their health care professionals, and adhere to important treatment plans."

Explains the Medscape story:

Under the HIPAA Privacy Rule, patients or their designees or personal representatives can get a copy of their protected health information, including an electronic copy, with limited exceptions, but may have to put their request in writing and pay for the cost of copying, mailing, or electronic transfer, the release said. In most cases, copies must be given to the patient within 30 days of his or her request.

How on earth can the FTC continue their heavy-handed interference with private contracts now?!


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Death and Privacy Part III

by Bob Gellman February 5th, 2014 12:46 pm

Death and Privacy:  Part III

By Bob Gellman

In 2013, I posted two short articles discussing whether and how privacy rights continue after the death of a data subject. The focus was on US law. I thought that it would be worthwhile to offer some additional information and resources to anyone who has an interest in the topic.

I attended the 2014 Computers, Privacy & Data Protection Conference in Brussels, Belgium, in January 2014, where there was a panel on Post-Mortem Privacy: Exploring Deceased’s Privacy in a Digital World. The Centre for Creativity, Regulation, Enterprise & Technology (CREATe) organized the panel.

Some post-mortem privacy issues, such as what happens to a Facebook page when the owner dies, have been the subject of attention and litigation in the US, but explorations of the general topic in Europe have gone further. Whether dead individuals have rights under the EU Data Protection Directive is not as clear as it might be, and the law in EU Member States varies somewhat. The materials below explore this and other related topics.

First, here are the particulars about the panel:

Chair Michael Birnhack, Tel Aviv University (IL)

Moderator Irina Baraliuc, Vrije Universiteit Brussel (BE)

Panel:  Damien McCallig, Galway University (IE); Elaine Kasket, British Psychological Society (UK); Jan Bikker, University of Dundee (UK); Wendy Moncur, University of Dundee (UK); Edina Harbinja, University of Strathclyde (UK).

 This panel explores the issues surrounding post mortem privacy (PMP): privacy of the deceased in the digital realm. This concept has only recently become a subject of concern in various disciplines, including law, sociology, psychology, computer sciences, anthropology, and forensics. The panel aims to tackle and explain how the competing privacy interests of the deceased, bereaved family, heirs and society should be dealt with following death. It will assess and question the value and importance of the various aspects of privacy in digital remains from personal interest and public interest perspectives. Panelists, drawn from a diverse range of disciplines and interests, will explore the challenges posed to the values and aspects of privacy by our interactions with digital technology and post-death phenomena, specifically digital legacy, inheritance, identity, property, mourning and the repurposing or further uses of digital remains.

This interdisciplinary panel envisages tackling the following PMP-related challenges:

● The bequest, inheritance and repurposing of personal data (such as emails, photos and social network site interactions) in the context of the death of technology users;

● Technologically-mediated mourning and memorialisation and posthumously maintained bonds with the dead;

● Comparative legal issues related to the phenomenon of PMP (personality, data protection, copyright);

● PMP themes relating to the interests of victims experienced in global disasters, whether survivors, the deceased or next-of-kin.

 Second, I looked at some of the materials that the panel members made available, and here are a few links that may be of interest. This is not a comprehensive list of materials, but it will give interested parties a start.

http://script-ed.org/?page_id=809

An issue of Scripted (2013) has several articles about post-mortem privacy by people from the CPDP panel. I won’t list the details here. Click on the link above for abstract and copies.

 http://blog.oup.com/2013/10/dealing-with-digital-death/

Dealing with digital death Posted on Monday, October 14th, 2013 at 4:30 am By Damien McCallig

Through the use of email, social media, and other online accounts, our lives and social interactions are increasingly mediated by digital service providers. As the volume of these interactions increases and displaces traditional forms of communication and commerce the question of what happens to those accounts, following the death of the user, takes on greater significance.

Should the relatives or heirs of a deceased Facebook user have the ‘right’ to access, take control of, or even delete the account? Some of you reading this will recoil in dread at such a thought, quickly remembering all of those digital indiscretions and private messages you would prefer to assign to oblivion but never got around to deleting. Other readers may remember a friend, no longer alive today, and will possibly turn to social media later to seek out a picture and recall a shared memory.

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http://www.research.ie/intro_slide/law-digital-remains

The Law of Digital Remains. Reconciling the dignity and interests of the deceased with those of the living. Damien McCallig, School of Law, National University of Ireland Galway.

Dealing with the aftermath of someone’s death is always a difficult and sensitive issue. In recognition of this, society has developed various rites, rituals and norms to aid the family and loved ones to deal with the physical remains and redistribute the possessions of the deceased. This involves balancing an innate desire to respect the dignity of the deceased with the needs and interests of the surviving family and wider community.

In the pre-digital age laws adequately reflected these rites and norms. For example, personal mementos, photographs, letters, scrapbooks and meaningful tokens that hold sentimental value pass by default along with the physical property they are bound up in. Succession law reflects these norms, with personal property passing by will or the rules of intestacy. The unauthorised interference by unconnected third parties with a deceased’s personal items was generally precluded as they were bound up in property that would remain within the home or in the possession of friends or family. The digital universe has changed this.

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 http://www.itworld.com/internet/301418/online-life-after-death-faces-legal-uncertainty

Online life after death faces legal uncertainty. Different jurisdictions set different rules for what should happen to online personal data after death

By Loek Essers, IDG News Service 

October 08, 2012, 10:24 AM — When people die in the real world, their online alter egos may live on, creating an unusual situation for those who only knew them through their online presence. The law is only beginning to address this limbo state, and fragmented privacy legislation provides no conclusive answer to the question of who should be allowed to access or delete someone's social networking profile or email correspondence after they die, a panel discussion at the Amsterdam Privacy Conference concluded.

When a Facebook user dies and Facebook is informed of the death, the company "memorializes" the profile, hiding features such as status updates, and allowing only confirmed friends to view the timeline and post on the profile. Maintaining access to such a profile helps in the mourning process, said psychologist Elaine Kasket, who presented a paper on life after death on Facebook at the conference on Monday. "Visible conversation with a person who died and about person who died is important in the grief process," she said.

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http://academic.research.microsoft.com/Publication/56913300/from-death-to-final-disposition-roles-of-technology-in-the-post-mortem-interval

From death to final disposition: roles of technology in the post-mortem interval 

By Wendy Moncur, Jan Bikker, Elaine Kasket, and John Troyer

Abstract:  In this paper, we describe collaborative processes and stakeholders involved in the period from when a person dies until they are laid to rest: the funeral, final disposition of the body, and (in some circumstances) victim identification. The rich mixture of technologies currently deployed during this brief period are categorized and critically analyzed. We then reflect on the implications of our findings, both for the design of technology that takes the end of life into account, and for the wider HCI community.

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2222163

 'What Happens to My Facebook Profile When I Die?’: Legal Issues Around Transmission of Digital Assets on Death (February 21, 3013) Lilian Edwards, University of Strathclyde Law School, and Edina Harbinja, University of Strathclyde Law School

 Abstract:  This chapter aims to explore some of the major legal issues pertaining to transmission of digital assets on death. “Digital assets” within this chapter are defined widely and not exclusively to include a huge range of intangible information goods associated with the online or digital world: including social network profiles e.g. on Facebook, Twitter, Google or Linked In; emails, tweets, databases etc; in-game virtual assets (e.g., as bought, found or built in worlds such as Second Life, World of Warcraft, Lineage, etc); digitised text, image, music or sound, such as video, film and e-book files; passwords to various accounts associated with provisions of digital goods and services, either as buyer, user or trader (e.g. to eBay, Amazon, Facebook, YouTube etc); domain names; 2D or 3D personality-related images or icons such as user icons on LiveJournal or avatars in Second Life; and not excluding the myriad types of digital assets emergent as commodities capable of being assigned worth (e.g. “zero day exploits” or bugs in software which antagonists can exploit ).

The chapter explores (a) how far the new digital assets fall into existing paradigms of property (b) the interactions between property, succession, privacy and contract in this domain, especially in the context of assets generated on intermediary sites such as social networks (c) whether we need a notion of "post mortem privacy" and (d) briefly , some solutions to some of the issues thrown up by previous sections, including emerging legislation , and the new breed of "life after death" technology assistants such as Legacy Locker.

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Privacy at RootsTech

by Bradley Jansen February 2nd, 2014 9:07 pm

As many technologically-oriented genealogists know, the RootsTech conference at Salt Lake City, Utah starts soon.  In fact, this group blog started at RootsTech last year, and we announced it during an "unconferencing session" with Fred Moss of the Federation of Genealogical Societies, Jim Dempsey with the Center for Democracy and Technology and myself.

The syllabi for this year's conference are available here.

Looking at the schedule, one will find many issues related to privacy and the related tech issues such as storing and sharing your information online and in the cloud.

Just a reminder that "genealogyland" has joined privacy and technology advocates to update the Electronic Communications Privacy Act (ECPA) in the Digital Due Process coalition.  For more information, check out http://digitaldueprocess.org.


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Practical Practices in Pennsylvania

by Kenneth H. Ryesky February 1st, 2014 10:49 pm

There are two interrelated historical patterns that occur with great frequency:

A. Individuals of power and influence ignore and/or dismiss the significance of an event or development; and, the other side of the coin,

B. There are individuals who engross themselves into any given trend or paradigm shift long before the general acceptance or implementation of such trend or paradigm.

Shortly after the 1993 bomb incident in the World Trade Center parking garage, my brother-in-law, who is very active and high-profile in the broadcast industry, advised broadcasters who had antennae on the WTC Towers to implement back-up antennae at other locations, just in case the WTC antennae would suddenly be removed from service.  Eight years later, my then 12-year-old son, who made a daily 1-hour commute from Long Island to his school in Queens via the Long Island Railroad, had one of the relatively few operational cell phones in the September 11, 2001 chaos. Those cell phone providers who depended solely upon their WTC Tower antennae were caught short-handed, and my brother-in-law was quite unhappily vindicated (as were my wife and I, who had been criticized and castigated for giving a twelve-year-old kid a cell phone).

And, let us not forget what data digitization did to the photographic film manufacturers, and the manufacturers and purveyors of the cameras that used the film, and the processors of the film.

So it goes with privacy and the genealogical community. Those genealogists who failed to recognize the broader privacy issues are now being abruptly sucked into the great privacy debate. And the privacy conversation, genealogy and otherwise, is now spotlighting many areas and issues which heretofore had been seemingly unconnected to our main focuses of concern. One of these is privacy and the taxation process. [It is parenthetically noted that old taxation records are valuable genealogical resources; indeed, it was the sovereigns' concerns for collecting the taxes that was the impetus for the use of surnames in many societies.].

We are now at the point where all but the most naive in the contemporary genealogical community in America are at least generally aware of how the IRS's data security (mal)practices affect their genealogical research.

It has come to the attention of this tax lawyer that the Pennsylvania Department of Revenue has issued the following pronouncement:

"Beginning with the 2014 income tax filing season, the department instituted new security measures to identify and intercept fraudulent refund filings. As part of this initiative to ensure refunds are issued only to their rightful owners, taxpayers may be asked to confirm their identities before refunds are issued."

How this new initiative fares remains to be seen, but people in the taxation community will certainly be watching to see whether the Pennsylvania Revenue Department is ahead of the IRS on the power curve. Pennsylvania's practices and procedures will play into the discussion as to whether the recent restrictions on the Death Master File access (of which I posted on 7 January 2014) are sufficient or are overly broad.

It is a discussion in which the genealogical community must participate.


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Taking a Stand in Genealogyland

by Kenneth H. Ryesky January 20th, 2014 3:37 am

"Just how tone deaf is the genealogical community?" asks Brad in his post of 16 January 2014, imploring the leadership in Genealogyland to take a stand against the misuse of public information for nefarious if not lethal purposes. My own posting of 7 January 2014 mentions a loophole in the latest Federal budget agreement's restriction upon Death Master File (SSDI) access; various members of the genealogical community are now pondering the prospects of at least some genealogists obtaining Commerce Department certification for the early access loophole.

As this posting is being written, the Commerce Department is working on its proposed regulations for the DMF early access program; these, we are assured, will soon appear in the Federal Register for public comment.

Many existing professional qualifications are accepted as valid credentials for various purposes by various governmental agencies. The Internal Revenue Service's Office of Professional Responsibility, for example, accepts bar admission or CPA certification as a valid credential for representing taxpayers in matters before the agency. Many government agencies, Federal and state, accept the Certified Professional Contracts Manager or the now superseded but grandfathered Certified Purchasing Manager designation as a substitute for some qualifying experience in procurement and acquisition jobs (my own C.P.C.M. and C.P.M. certificates gave me a fair degree of career mobility within the Department of Defense when I needed it, but lapsed after I transitioned from DoD to the IRS).

As with many other affinity groups, genealogists have elevated themselves to professional status through the use of the certification process. Now that Congress has tasked the Department of Commerce with overseeing a process for early DMF access certification, genealogists are pondering how their own certification credentials might be used to bootstrap their way to the coveted Commerce Department approval.

If professional credentials such as the Certified Genealogist title are to be accepted by the people in Commerce, then the CGs will need to clearly and visibly build confidentiality and ethics into their own certification program. Even more basic is the need to make the criteria for CG certification, including matters of ethics and confidentiality, open and transparent.

Which all brings us back to taking a stand in Genealogyland.


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Genealogical Access v. 2nd Amd?

by Bradley Jansen January 16th, 2014 4:19 pm

Why must the genealogical community go out of its way to pick fights and create enemies?

The current issue of Virginia restricting records access as an intended consequence of a law to protect the privacy of law abiding Virginians was brought to my attention by my colleague, the Legal Genealogist, Judy Russell in her blog post, "Virginia call to arms."  In it, she explains:

The purpose of S. 1335, now Chapter 659 of the 2013 Acts of Assembly of Virginia, was to protect the privacy of those who have applied for and received permits to carry concealed weapons. The fiscal statement accompanying the bill simply said that it “prohibits the clerk of a circuit court who issued a concealed handgun permit from disclosing any applicant information” and that it was “not expected to have any material fiscal impact on the court system.”

But that the law of unintended consequences chimed in:

As a result of Chapter 659, there’s been a dramatic change at the Library of Virginia, Virginia’s fabulous state archives-and-library in Richmond, where — until this law was passed — you could simply pull a reel of microfilm out of a drawer and immerse yourself in the minutia of 18th, 19th and early 20th century court records.

But because of this law, the court record books and the index rolls to those record books were pulled from the accessible microfilm. And not just a few records. At last count, there were more than 220 rolls of microfilm including court order books, indexes of court order books, indexes to court cases that are affected. At least 135 of those reels contain nothing but records that are more than 100 years old.

So, we know two things to sum up: there is majority support to protect the privacy of concealed carry weapons permit applications and that the lack of any time constraint in the new law forces University of Virginia and state employees to look up information for records access on historical records that used to have open access.

Certainly, reasonable people could come to an understanding to fix this problem.  But no.  The "fix" currently proposed would protect the privacy of living people for only five years.  This arbitrary number seeming pulled out of thin air undermines the logic of the underlying law: "designed to keep criminals from getting information about people who own guns today" as Judy's follow up post explained.

Unless there is an argument can be proven that firearms owners don't keep any weapons for as long as five years in their lives or that they never stay at the same address for that long, the five year "fix" contravenes the rationale of the underlying law and should be rejected in the name of privacy as well as public safety.

As I explained when I testified before the 

Committee on Public Safety and the Judiciary, 
Council of the District of Columbia in 2008 in the wake of the DC v. Heller decision:

The registration process of the regulations create a dossier of citizens. Probably the greatest concern of the Center for Financial Privacy and Human Rights is the Big Brother surveillance concerns of the gun registration.
We know that broadly half of the data abuse problems come from internal abuses: either those who should have legitimate use of that data and abuse it or allow others who should not have such access to get use of our information. Identity fraud (popularly called identity theft) is a serious and growing problem . . .

The worst possible scenario would be for the city to institute a gun registration program that makes public a list of gun owners in the District who would then become targets for gun theft. Under such a scenario, we would then potentially increase the number of guns in the hands of criminals, increase crime and further victimize law-abiding, peaceable people.

The genealogical community, particularly the Virginia Genealogical Society, should demonstrate that they care more about potential gun victims, privacy concerns such as identity fraud and protecting Constitutionally-recognized rights more than they do insisting on five year access to information about living people.

Just how tone deaf is the genealogical community?

Now is the time for leadership: take a stand against gun violence and identity fraud and suggest a friendly amendment to the "fix" with a 100 year time delay which would not affect the majority of the concerned records, or at least a 74 year one to harmonize with privacy expectations set by the U.S. Census.

The goal of records access would advance more by outreach and involvement with broader coalitions of good government, records access, and whistleblowers than senselessly antagonizing the privacy community and needlessly making new enemies among the Second Amendment supporters.

EDIT:  While some in the genealogical community might pooh pooh the idea that making firearm permit applications public might encourage criminals to dust off records in libraries or jeopardize law-abiding firearms owners, they need to pull their head out of the sand.  A quick Google search shows that almost exactly a year ago, the New York Times ran a story "Newspaper Takes Down Map of Gun Permit Holders" spelling out exactly these real concerns.

This was not an isolated incident.  The same thing happened in Tennessee, Indiana, Ohio, Maine, Iowa, North Carolina, Missouri, previously in Virginia, and other places.  Seriously, law abiding gun owners don't like being outed like sexual predators.


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Congress is Plugging the Wrong Hole

by Kenneth H. Ryesky January 7th, 2014 1:41 am

[This piece originally appeared in The American Thinker on 20 December 2013]

Section 203 of the budget bill passed by Congress restricts access to a Social Security Administration database known as the Death Master File. The misguided passage of this restriction will carry negative side effects and fail to achieve its purpose.

Section 203 embargos the release of the DMF for three years. To be sure, early access to the DMF is provided to individuals having "a legitimate fraud prevention interest" or "a legitimate business purpose," but such individuals would need to run the gauntlet to achieve clearance under a not-yet-established Department of Commerce certification program. This would be unduly burdensome for, say, an estate executor who, on a one-time basis, needs to ascertain the heirs of a decedent.

The passage of this provision has been sold to the Congress as a miracle cure for a multi-billion dollar fraud scheme which collectively inflicts untold economic and psychological harm upon the victims: Tax fraud through identity theft.

For many years, fraudsters have filed with the Internal Revenue Service fabricated tax returns which use stolen identities as entries for the taxpayer and/or a claimed dependent, and which show a refund owed to the taxpayer, thereby defrauding the public fisc when the refund is issued (as it almost always has been). This has even been done by prison inmates, among other perpetuators. A Treasury Inspector General for Tax Administration (TIGTA) report confirms that stolen identity tax fraud entails millions of tax returns and billions of dollars. When the stolen identities are those of deceased individuals, particularly deceased young children, the collateral damage inflicted upon the surviving families is especially grievous.

And, due to some heedless inattention on the part of the IRS, one source of pilfered identities has been the DMF. The shutdown of DMF access accordingly has played quite well in the Congress, for it entails both a "feel good" sense that criminals will be stymied, and a seeming prospect to stanch a significant hemorrhaging of the public purse.

Social Security Numbers were originally intended to be just that, and not used for other purposes. But the uniqueness of the SSN made it convenient for use by the banking and financial industry, and by the taxation authorities. The Tax Reform Act of 1976 amended the Internal Revenue Code to require that the taxpayer's SSN be used as the identifier on a taxpayer's tax return.

During the 1970's, Ronald Perholtz, then the U.S. Postal Service's General Manager of Accounting, realized that the USPS was cutting many pension checks to deceased retirees, and that the Social Security Administration had data which could be used to prevent this and thereby save the Postal Service millions. Perholtz resigned his position, founded his own consulting firm, and proceeded to market his services to the government. Perholtz also developed another service for hire, verification that pensioners were in fact still among the living; his efforts culminated in a consent settlement with the Social Security Administration under which the SSA would publicly avail the DMF under the Freedom of Information Act. Other entrepreneurs have since taken to purchasing the DMF and purveying it as the Social Security Death Index. [Alas, Perholtz would later go to prison for contract fraud in his dealings with the government.].

The DMF/SSDI has since been used in many industries to prevent fraud. But fraud prevention is not the database's only useful purpose. Medical researchers, for example, need it for long-term projects to ascertain the living/deceased status of their subjects.

Genealogical researchers also use the DMF/SSDI extensively; such research is instrumental for purposes such as identifying and finding relatives of military or civilian casualties or crime victims, repatriating artwork stolen during the Nazi era, and building family health and medical history records (which the Surgeon General encourages Americans to do). Various groups having specialized family history research interests include Native Hawaiians who must prove their descent for certain housing guarantees, Ashkenazi Jewish women whose susceptibility to breast cancer requires knowledge of family breast cancer incidence in order to make appropriate healthcare decisions, and African-Americans who seek to reconnect descendants of siblings who were separated from one another during the slavery era.  These vital pursuits are now threatened because family research is not an activity for which early access to the DMF is specified.

The fraudster community eventually learned that one entity that did not verify its data with the DMF was the IRS. By 1998, when Alan Scott was convicted of filing 20 false income tax returns with the IRS using stolen identities, the IRS could no longer claim ignorance of the problem. Yet, more than a decade later, the IRS still fails to adequately assist the good faith tax return filers whose identity has been stolen by fraudsters.

The IRS's dismissive passivity in failing to verify the legitimacy of the filed returns has been quite ignominious. Imprimis, the tactic of falsely claiming someone else's child (often deceased) as a dependent can be readily detected up front because the information from the Form SS-5 Application for a Social Security Card requires that the parents' Social Security Numbers be provided for a child under the age of 18. This information is obviously in the government's database, and a red light should flash whenever the SSN of the taxpayer or the taxpayer's spouse does not jibe with that of the parent of the child when the child's SSN was first assigned.

Moreover, the IRS has assumed that the first tax return to be filed is the legitimate one, and the subsequently-filed return is that of the impostor. Such an assumption is questionable at best, inasmuch as the legitimate good faith tax return filer needs to assemble and compile complete and accurate information for the tax return, while, as amply demonstrated, the fraudster's return will suffice with randomly-concocted numbers which are not dependent upon any statements from banks, brokers, mortgage companies, or other third-party payers or payees.

A recent TIGTA report has found that the overwhelming majority of stolen identities used on tax returns are now those of living individuals. So cutting off access to the DMF may well protect deceased children, but will not stop identity theft tax fraud.

The vast databases of personal information required under ObamaCare can only provide greater opportunity to steal the identities of living persons; the ObamaCare incentives for employers to convert full-time employees to part-time (and strictly limit the hours for existing part-timers) in order to avoid having to provide healthcare insurance can only attenuate the employees' group identity and loyalty (and may even conjure up thoughts of vengeance against the employer); and the increased general costs of healthcare under ObamaCare can only provide increased pressure to steal an identity not to defraud the IRS, but to obtain healthcare itself.

Section 203 abridges access to a valuable resource which should be in the public domain; the provision was enacted to cover for the IRS's abject failure to protect the American people with proper data stewardship practices.

The Talmud recounts a colloquy where Rabbi Joseph says to Rabbi Abaye, "It is not the mouse that is the thief but the hole." Congress would have us (and perhaps themselves) believe that it has plugged a large hole in the Federal coffers. But the mice still forage and there are even larger holes for them to access the granary. Future GAO and TIGTA studies are likely to find substantial gaps between the savings projected by the proponents of Section 203 and the savings, if any, actually achieved by it.


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