Death and Privacy Part II

by Bob Gellman April 1st, 2013 4:39 pm

Do Dead People Have Privacy Rights?

Part 2 of 2

In Part I of this post, I discussed privacy rights after death in the context of health records.  Let’s look at how some other laws treat the issue.

Under the Privacy Act of 1974, a law that applies to federal agencies only, deceased individuals (and their next of kin) have no privacy rights.  See DOJ Overview of The Privacy Act of 1974 at 12 (2010), http://www.justice.gov/opcl/1974privacyact.pdf.  The Freedom of Information Act offers no privacy protections beyond death either.  Aggressive reporters file a FOIA at the FBI following any celebrity’s death, just to see what’s available, and quite a few interesting stories resulted, especially from the J. Edgar Hoover era.

The “traditional” FOIA bright line answer isn’t so clear any more.  In 2004, in a case that followed the suicide of White House Deputy Counsel Vince Foster, the Supreme Court found that Foster’s family had a right to privacy that justifies withholding of photographs of crime scene photos.  https://supreme.justia.com/cases/federal/us/541/02-954.  There was a similar result in a FOIA case where the withholding of the tape recording of the final minutes of the Challenger space shuttle astronauts was also justified on the grounds of the privacy of surviving family members.

If you think about it, privacy rights of family members do not exist before death.  An individual can stand up in public and reveal something loathsome or hereditary about himself that reflects poorly upon or otherwise upsets his relatives.  Family members don’t have a right (as far as I know) to stop the disclosure in the interest of their privacy.  Does the family’s privacy interest arise from nothing at the instant of death?  Apparently.

For my nickel, the key to these cases is that they were decided by public figures like Supreme Court Justices and other judges.  The Justices looked at Foster’s death and thought that their deaths could be of public interest under the right circumstances.  They would want to spare their families, so they did the same in these cases.  It’s an understandable human reaction, even if it is harder to much sense of the principles.  There are other messy but less flashy FOIA cases about privacy of the dead.

Remember when Dale Earnhardt died in a crash during the last lap of the 2001 Daytona 500?  Under Florida law, autopsy photos were disclosable as public records under state law.  There was a rush for the photos, accompanied a dread that gruesome photos would be plastered all over the Internet.  In less than two months, the Florida Legislature changed the law so that the release of autopsy photos required approval of the next of kin.  A policy that stood for a long time was overturned just like that.  Not surprisingly, grieving families seem to receive a lot of sympathy in these matters.

The European Union has a lot of privacy law, and the protections of the law apply to living individuals.  However, the issue is no simpler in Europe than it is here.  A group of data protection officials observed recently that it may not be clear if an individual is living, that information on dead individuals may also relate to living individuals, that rules other than data protection rules may extend specific privacy rights after death, and that laws in some countries may extend privacy protection to cover dead individuals.  http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2007/wp136_en.pdf.

We are not done with examining privacy issues and death.  According to the Identity Theft Resource Center, identity thieves obtain information about deceased individuals to commit identity crimes.  Thieves watch the obituaries, obtain death certificates, or get information from websites that offer the Social Security Death Index file.  http://www.idtheftcenter.org/artman2/publish/c_guide/Fact_Sheet_117_IDENTITY_THEFT_AND_THE_DECEASED_-_PREVENTION_AND_VICTIM_TIPS.shtml.

Now we are getting an issue that is of current interest to genealogists, I intend to wind up here.  I don’t want to get into the particulars of that debate now.  What I wanted to demonstrate is that the right of privacy after death is a complex and difficult subject.  Bright lines are hard to find.  Simple and clear policies produce complicated legal and policy problems.

Personally, I don’t think there’s a right or wrong answer here.  Or a one-size-fits-all answer either.  We already have different policies for different laws and circumstances.  They may not all make sense, but that’s the real world.  That's what we have for privacy before death too.

Many interests can be affected by privacy-after-death data issues, and each interest should have a say in any debate.  The struggle between openness and privacy is a familiar one generally, and the players and stakes are a bit different after death.  It’s unfortunate that cases and policy are often decided during the emotional time following a death.  Grieving widows tend to receive press attention and political deference.

I think that it is possible to seek reasonable balances and responses to current issues.  No matter where you come out on privacy and death, I hope that you can agree with that point.



One Response to “Death and Privacy Part II”

  1. avatar Fred Moss says:

    Bob -- I think you have done an excellent job of framing the issues. And I agree that it should be possible to seek reasonable balances and responses to current issues. Hope to participate in that process.

    Fred Moss

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