The right to privacy is a relatively recent legal construction, and one that is still evolving. As genealogists, people whose goal is to learn and write about personal details of other people, we often hear complaints about invasion of privacy. So it is worth exploring the issue in some detail to understand what rights exist at present and what might evolve in the future. Since much of our work is done online, I will also address privacy issues related to online trees on various platforms.

[Ed.: This paper is based on an address delivered by the author in Jerusalem, Israel, on July 7, 2015 at the 35th Conference of the International Association of Jewish Genealogical Societies.]

Although Judge Cooley in his 1888 treatise on torts had argued for a “right to be let alone,”[1] prior to 1890 no English or American court had ever expressly granted relief based on any right of privacy. In 1890, Louis Brandeis, a Kentucky-born lawyer in Boston with Jewish roots in Bohemia, who later would become the United States’ first Jewish Supreme Court Justice, penned a Harvard Law Review article on privacy with, and at the urging of, his friend and colleague Samuel D. Warren. In The Right to Privacy Brandeis and Warren argued that the legal principle of a right to privacy should be acknowledged under the law.[2] The impetus for the article, which is considered by many to be the most influential law review article ever written, might strike us today as quaint. Warren, who in 1883 had married the daughter of U.S. Senator, Secretary of State and one-time presidential candidate Thomas F. Bayard (1828-1898), was concerned primarily with gossip columns.

“The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.”

Scholars have speculated for decades on what particular gossip might have so irked Warren. In 2007 Amy Gajda published an article analyzing press coverage of Warren and his family. [3] Thanks to his father-in-law Bayard’s political prominence, Warren and his wife had been frequently mentioned in society reports describing family weddings, funerals, and parties. Although the coverage was quite tame from today’s perspective, the family was no doubt a bit sensitive when in 1889, three years after the death of Mrs. Warren’s mother, the newspapers reported that her 60-year-old father was to remarry a woman 20 years his junior. The newspapers had earlier reported on Mrs. Warren’s friendship with President Grover Cleveland’s 21-year-old bride Frances Folsom, whom the bachelor President had married not long after the press had disclosed the existence of Cleveland’s illegitimate child from a prior affair with Maria Halpin. But perhaps the prurient gossip was just imagined, as nothing salacious has yet been discovered that would justify the outpouring of anti-press rhetoric contained in the Brandeis-Warren article.[4]

Nevertheless, The Right to Privacy led to the development of four related, but distinct, categories of privacy rights, as delineated by University of California (Berkeley) School of Law Dean William L. Prosser in his seminal 1960 article on Privacy:[5]

1. Appropriation. The first right of privacy to be adopted was the right against appropriation of name and likeness for commercial purposes. This right limits the ability of advertisers to use the names, faces and voices of celebrities and others in films or advertisements without permission. This category could also come under the rubric of false advertising, since the purpose is to prevent misleading suggestions of celebrity endorsements, as well as protecting the right of celebrities to profit off their fame by endorsing products.

2. Intrusion. The right of privacy has been used to bar physical intrusion, searches, eavesdropping, wiretapping, and hidden sound and video recording. This aspect of privacy requires an affirmative act of prying or intrusion that a reasonable person would consider objectionable, and the thing intruded upon must in fact be private. For example, it is not an intrusion to watch, follow or even photograph a person walking on a public street, although it would be to use a selfie stick to film up a woman’s skirt.

3. Public Disclosure of Private Facts. A cause of action can be brought for objectionable publicity given to private information, even if true. A 1931 case involved the revelation of the present identity of a former prostitute who had been a defendant in a murder trial seven years earlier.[6] Other early cases involved publication of a person’s debts.[7] The facts must be private facts, not generally known to the public, that are offensive or objectionable to a reasonable person of ordinary sensibilities.

4. False Light in the Public Eye. In these cases, the invasion of privacy is a result of attributing to the person some generally embarrassing or objectionable attribute that he does not hold. For example, if one were to take a picture of a random person and place it in an article on syphilis sufferers, this would be considered an invasion of the person’s privacy. This category is perhaps quite similar to the law of defamation, since it applies only to false and misleading attributions.

There are limitations and defenses to an action for invasion of privacy, most notably the common law privilege (and in the United States constitutional right) to report on and discuss public figures and events of public interest in the press. For public figures such as politicians and celebrities, there is no invasion of privacy unless there is a finding of malice, which is to say, an intentionally false and misleading publication of a private matter designed to harm the subject and not for the legitimate purposes of parody, opinion or public comment.

I have gone into this detail in order to demonstrate that mostly what we call the right to privacy has little or nothing to do with what we do as genealogists. Certainly the first and last categories — appropriation and false light — have no possible connection to genealogy, since we are not in the business of using people’s names for commercial advertisements or films, nor do we intentionally add false facts to our family trees in order to embarrass people. Intrusion also would not ordinarily be an issue of concern, unless you are in the habit of using unorthodox methods of obtaining genealogical data. For example, I suppose hacking into private adoption files might give rise to an action. But barring something egregious like that, the only possible category that could concern what we do when we build family trees is the one pertaining to public disclosure of private facts.

Before we delve further into the right against public disclosure of private facts, I want to suggest that in my opinion, this category is ripe for re-evaluation. The old cases that first gave rise to the concept increasingly seem old-fashioned and out of date. What we often do when we limit disclosure of private facts that ordinary people deem offensive and objectionable is perpetuate stigmas. Promiscuity, homosexuality, illegitimacy, infidelity, etc. were long considered so objectionable that the mere mention of the fact, even if true, was considered offensive and an affront to public morals. By limiting disclosure and discussion of these facts the stigma was reinforced. Their absence from the public sphere made their occurrence seem more rare and unusual than they in fact were. Yet the considerable change in public opinion on these issues has demonstrably been the result of more disclosure and discussion. For example, the controversial practice in the 1970s of publicly “outing” prominent homosexuals, under the protection of the reporting privilege, no doubt led to the great advances for the homosexual community that we have seen in the past decade. Disclosure can lead to the erosion of the very stigma that makes the fact objectionable, by making the presumed deviant behavior more apparent, even ubiquitous and therefore less threatening. We need to be cognizant of this when we consider the rights of individuals to prohibit public disclosure of private facts based on the current state of public mores. Protecting privacy in some cases reinforces the need for privacy, by affirming the stigma attached to an otherwise unobjectionable fact.

That is not to say that there is no need for any privacy. The law already delineates a number of areas where privacy is protected, and disclosure cannot be compelled. For example, the attorney-client privilege protects the conversation between a lawyer and her client so as to foster a more open and trusting dialogue, without fear that an admission made to an attorney can be used later as a basis for prosecution. Similarly, the law protects what you say to your doctor, and by extension the results of medical tests. Conversations between married spouses, or priest and penitent can also be privileged from disclosure. The same applies to tax returns.

Turning now to genealogical data, however, the existence of legal protections are less than clear. Are there in fact legal limits on what can and cannot be published on a family tree?

Living or Dead? Let us first attempt to differentiate between living and deceased people. Do the deceased have privacy rights? And if so, how are they protected? Since dead people cannot assert rights for themselves, this question is related to the question whether privacy rights can be asserted by heirs on behalf of someone who is deceased. With regard to the right against misappropriation of likeness, the common law did not extend to heirs any rights to assert a claim. In one California case, the heirs of actor Bela Lugosi claimed profits from Universal Studios for exploitation of Lugosi’s Count Dracula character. The California Supreme Court denied the claim, finding the heirs had no common law rights to prevent use of Lugosi’s likeness.[8] California subsequently passed legislation giving heirs rights against appropriation of the celebrities’ name or likeness for 70 years after death. Other states have enacted similar protections. However, no statute has extended such inherited rights to claims for public disclosure of private facts, which, as we demonstrated above, is the only aspect of the right of privacy that would pertain to genealogy. Therefore, absent new legislation, there is no right of privacy issue with regard to disclosing facts about deceased individuals.[9] This means that, as far as the law is concerned, genealogists should feel free to disclose genealogical data, and even embarrassing facts, about the deceased. No legal claim can result from such disclosure.

With regard to the living, the rule against public disclosure of private facts applies. The facts privileged from disclosure must be private facts, not generally known to the public, that are offensive or objectionable to a reasonable person of ordinary sensibilities. Regular genealogical data regarding name, date and location of birth, marriage and death, the names of parents, siblings, spouses and children should seldom give rise to any claim for invasion of privacy, since these facts are usually not private, but are known by a wide range of people, and further are not offensive or objectionable to a reasonable person. As Dean Prosser explained in 1960: “no one is entitled to complain when there is publication of his recorded date of birth or his marriage.”[10] With regard to some embarrassing private facts, however, the genealogist is probably wise to tread with caution. If it is not generally known that the milkman was your cousin’s father, it is probably not wise to publish this fact. By extension into the modern world of DNA testing, disclosing that a father does not share the y-dna haplogroup of his putative son could be problematic.

This is not to suggest that liability will result from the disclosure of any such facts. There may be defenses in any particular case. And the existence of damages from an objectionable disclosure might be uncertain and may depend on how many people will have seen the disclosure. Remember that the test is not whether the supersensitive subject objects, but whether a reasonable, ordinary person would find the disclosure objectionable. Even the milkman example might not rise to this level, especially if the publication was for the purpose of a family tree. There are today not many genealogical facts that the ordinary person might find truly objectionable if disclosed. Adoption, homosexual relationships, out of wedlock births, and in the wake of Bruce Jenner even gender transitions, may now be safe to disclose, as the stigma previously applied to these facts has receded. By contrast, the public disclosure that a birth was the result of rape or incest might still be thought sufficiently objectionable, and may give rise to a potential for liability. A genealogist should use his or her best judgment in these cases, but there is no hard and fast rule to rely on.

I want to repeat again that the objection of the individual concerned is not relevant to the legal question, so long as the fact itself is neither private nor objectionable to an ordinary, reasonable person.[11] Genealogists commonly hear complaints from people who fear the disclosure of their birth date or mother’s maiden name, often because of an irrational fear of so-called identity theft. The truth is that what is commonly called identity theft is in reality just garden variety fraud, and it is accomplished without the use of genealogical data. The most prevalent type is the result of theft of credit card data from merchants. The thief steals the credit card information, usually in bulk from a computer file, and uses it to make a purchase. No family tree information is used. The other type of identity theft is when someone applies for credit in your name. This type of fraud is perpetrated ordinarily by a bank teller or someone in your home, who already has access to your mail, phone, address, date of birth and social security number. Again, no search for genealogical data is involved. As far as I have been able to determine, there has not been even one documented case of identity theft involving a family tree. Not one. So, to return to the question, an individual’s irrational fear of identity theft should not give rise to any claim for violation of the right to privacy against a genealogist, because an ordinary, reasonable person would not have such fears, as the true risk of damage or embarrassment is zero.

This means that as genealogists committed to public genealogy, we should feel free to ignore the objections of those with irrational fears about the disclosure of commonplace genealogical facts. At least from a legal perspective, we have every right to disclose those facts. They are neither truly private, nor are they objectionable or damaging. Private facts do not include information that has been voluntarily disclosed to a third party or knowingly exposed to the public.[12] Many people know your date of birth (think of all those birth announcements and everyone who has ever celebrated your birthday). Your mother’s maiden name is also known to a wide range of people, namely everyone who knew her, at least prior to her marriage, or who also knew her parents. These facts may be published because they are not private in any sense of the word. Compare them to the truly private conversations protected by the attorney-client, doctor-patient, spousal or priest-penitent privileges. You cannot make an otherwise public fact private merely by wanting it to be private. As a result, with few exceptions, ordinary genealogical data may be published without giving rise to any potential claim for invasion of privacy.

So far, I have focused on American rules. But what about the new push for a right to be forgotten or right of erasure in the European Union and elsewhere? Jan Meisels Allen has been following the worldwide developments closely on behalf of the IAJGS Public Records Access Monitoring Committee. There are many facets to this development and it would probably be better if they were being dealt with separately. Instead, Europe seems on the verge of enacting broad regulations that could have very serious consequences for genealogists.

In the United States, the line between public and private actors is more defined than in the more socialized European Union, and this has led to some of the confusion. On the one hand, there is the concern for government data collection. Disclosures of mass data collection, and snooping on foreign officials, by the NSA have raised privacy concerns in the United States and abroad. In the United States, these concerns are focused mostly on government collection of data, restricting both the collection of data and the ability of individuals to access the data that is collected by the government. There is no serious discussion of limiting the ability of private companies and individuals to collect and use data. Americans are committed to free speech and free enterprise, and bristle at the idea that the government could hold a monopoly on big data, or use it to invade privacy. We are less concerned with abuses by individuals than we are in protecting our freedom from government intrusion and restraint. As a result, our privacy laws are directed at limiting government, and protecting property, as in the Fourth Amendment right against unreasonable searches.[13] Americans tend to be less concerned with what private corporations and individuals do with data that is collected, as that would infringe individual liberty and property rights.

By contrast, in the European Union, where the governments generally are more involved in people’s lives and often own stock in large corporations, the idea that governments should be restricted more than private corporate or individual actors seems almost not to have been considered. Europeans appear not at all concerned with a potential government monopoly on information, but are apparently very concerned that their neighbors and large corporations might be collecting data. For example, in Germany the law requires every individual to register his address with the authorities when he moves to a new home.[14] The ability of the police to know the whereabouts of every person in the country is simply accepted as a fact of life, without any concern for privacy. No such law could ever be passed in the United States. And so it is in Europe that we see an increase in data protection laws designed to allow ubiquitous data collection by the government, but prevent private individuals from accessing even relatively ancient records, for fear that someone might learn something that the government already knows.

I would argue that the European focus on limiting private access to data, while allowing widespread government data collection, is misguided. If European history of the past 100 years teaches anything, it is that the danger lies in abuse of governmental power, and the failure to allow private actors to balance that power. Rules that give the government a monopoly on information and data collection should therefore be adopted very cautiously.

So, we watch with some concern as the European response to Edward Snowden’s revelations about mass data collection by the NSA is to insist that Google allow people the right to erase true stories from their data servers, require Facebook to enact default rules in favor of privacy, and allow municipal archives to deny individuals access even to quite ancient genealogical records. In contrast to the United States, Europe’s answer to privacy concerns is to continue to allow data collection by the government, but limit individual rights to access and use not only government-collected data but data collected by individuals and corporations.[15] This is not to suggest that the United States does not have any restrictions on the availability of public records. Census records are sealed for seventy-two years, in the United States, and there are various restrictions on access to birth, marriage and death records throughout the United States. But these restrictions all pertain to access to public records and not at all to online family trees or other data published by individuals. In Europe, however, the proposed European Union rules with regards to rights of privacy may ultimately restrict the ability of private individuals to publish genealogical data, just as they are restricting the ability of Google to provide links to old news stories.

As Jewish genealogists, these developments underscore some of the strong philosophical differences between attitudes of Europeans and Americans toward publishing genealogical data online. With the rise in anti-Semitism in Europe we hear more Europeans expressing fears that the publication of Jewish genealogies could lead to anti-Semitic attacks. In other words, many people now wish to hide their Jewish background. Seeing no difference between government persecution under the Nazis and private anti-Semitic attacks, their answer is to claim a right to limit access to records, insist on rights of erasure, and protect their right to hide their Jewish background. The desire of some European Jews to hide fits nicely with the anti-Semite’s desire for Jews to disappear, and so governments are leaping at the opportunity to restrict access to archives and enforce expanded rights of privacy and erasure.[16] The added benefit of these data protection rules for Europeans is that they also limit the ability to discover and disclose crimes committed during the Nazi era.[17] This may also explain why these sorts of laws are gaining more traction in Europe than in the United States.

In sum, we may be heading toward a legal regime where publication of Jewish genealogical data is permitted in the United States, but prohibited, or at least potentially restricted, in Europe. The right to be forgotten and right of erasure emerging in Europe extend far beyond the right against public disclosure of private facts as developed in American jurisprudence, based as they are on the subjective desires of the individual and not the reasonable objections of an ordinary person. But so far, at least, there is no restriction on the publication of genealogical data, in the United States or Europe. The recent decisions are based solely on a directive concerning privacy, and have not been codified. The proposed European regulation governing the rights of erasure is not yet final and is still being negotiated. We will have to wait and see what new privacy law comes out of the European Union, and how it will affect online family trees.[18]

The Corporate Response. Multinational corporations who do business in both the United States and Europe are facing a dilemma of how to react to increasing demands for online privacy laws. Google and Facebook are at the forefront of this battle, but they are not alone. Genealogy sites such as Ancestry and MyHeritage/Geni also have to tread carefully through this changing legal landscape. But, as we will demonstrate, the leading online genealogy providers have established rules protecting privacy even beyond what is required under American or European law, as a result of market considerations.

On Ancestry, which allows users to build individual family trees, the default setting is public for deceased profiles, which means that other subscribers can view all content in the tree except information about living people and notes. There are two additional levels of privacy that one can select to make the tree more private. Trees designated private cannot be viewed by other subscribers, but limited information about deceased individuals in the tree (name, birth year, and birthplace) will appear in search results within Ancestry.com sites. For added privacy, one can prevent the tree from being indexed and found in searches. The tree owner can invite others to share the tree, and also decide whether to allow invited members to see living people. Public trees on Ancestry may be searchable via Google and viewed by nonsubscribers on the Historical Person Search pages that Ancestry allows Google to index as part of its marketing and promotion activities. However, as far as I can tell, there is no way to guarantee that your Ancestry tree will be discoverable in a Google search.

MyHeritage protects privacy in much the same way as Ancestry. Its privacy policy states: “We recognize the sensitivity and confidentiality of information that may be disclosed by users in registering, making purchases from our website or performing their family history research and we are firmly committed to protecting your privacy.” Each tree has a webmaster and site manager who can invite others to join the tree as members or guests. Living profiles have their first names, dates of birth, gender and photos hidden unless the user has been given access to the tree as a member. However, unlike Ancestry, on MyHeritage users without access rights can still see the last name of a living person on the tree.[19] Users have a host of privacy options regarding access and content, including whether to allow people to find the tree or request membership, include the tree in the MyHeritage search engine, enable Smart Matching with other trees on MyHeritage or its partners (like Geni), and whether guests can view the tree or search, view or copy photos. Like Ancestry, information from public profiles on MyHeritage may or may not appear in Google searches as a result of the company’s marketing efforts.

Geni, acquired by MyHeritage in 2012, operates an online collaborative tree that requires somewhat different rules. Geni’s World Family Tree presently has over 93 million connected profiles with well over 3 million users all working together on the same tree. On Geni, profiles are divided into two groups: public and private. In general, living people are private and deceased are public. Geni will permit users to make even deceased profiles private, but they may be made public again by other users[20] or curators, especially if the person in question was born more than 150 years ago. Celebrities and other public figures who have been designated as master profiles by one of the Geni volunteer curators are also public, even if living. A user can make his or her own profile public as well. Profiles that are marked living, but which are presumed deceased because the birth date is several hundred years ago, are also made public. Private profiles can be viewed by people inside the family group of the profile, which is defined as fourth cousin or less. Additionally, curators and anyone who has been added into the family group of a manager of the profile can view and edit the manager’s private profile. Geni’s volunteer curators sign nondisclosure agreements and agree to keep private information confidential, but are given access so they can assist users and resolve issues in the trees. In contrast with Ancestry and MyHeritage, public profiles on Geni are fully indexed and searchable on Google, and Geni’s search engine optimization is quite good, so the profiles often appear high on the Google search results. Geni allows a limited right of erasure, such that individuals may request deletion of their own profiles and those of their surrounding immediate relatives, subject of course to the possibility that someone else will add them back to the tree.

I have described the policies of Ancestry, MyHeritage and Geni from the perspective of those who want privacy, but what about those who want to publish their trees and are not concerned with privacy? Because of the privacy restrictions imposed by the various companies, there is no collaborative online platform where you can publish your tree openly without restrictions. The only option for a public family tree is to have your own website. Programs such as Reunion or FamilyTreeMaker will build web-based trees that you can upload to your own website. People who want a public tree frequently use this option.

As we have demonstrated, companies such as Ancestry, MyHeritage and Geni have developed privacy standards, not as a result of legal requirements, but as a marketing strategy. Again, there is no law, in the United States or Europe, that requires any portion of a family tree to be private, or that prohibits anyone from placing a fully public family tree, including living people and minors, on the Internet.[21] Not only are there no laws restricting online family trees, but the online companies are protected from any possible liability as a result of Internet safe harbor rules, which prohibit lawsuits against providers of online forums for users who post their own data.[22] The limited number of European cases on the right of erasure so far concern deletion of links to embarrassing criminal and debt-related items from search engines, somewhat in line with the early common law cases discussed above concerning public disclosure of private facts. To my knowledge there has not been any case brought in the United States or Europe concerning an online family tree, nor could there be under the existing legal regime.

The Internet has greatly changed our notions of what is private and what is public, and it has changed our notion of what it means to publish. Access to information has exploded. What formerly was known and available to a smaller circle of local friends and neighbors is now accessible to billions of people across the globe simply by putting it on a website. Many people are still adjusting to this new reality. The more paranoid and narcissistic among us have become even more so. There is a tendency for us to want to believe that everyone else in the world thinks we are as interesting and important as we are to ourselves. But that is obviously not true, and there is good reason not to become carried away. It used to be that when the government collected information about a person, it meant that someone somewhere had identified and targeted him or her for surveillance. We established safeguards against unreasonable warrantless searches to prevent abuse of that power. But we should not pretend that our concerns should be the same when the government engages in mass, untargeted data collection. Alarmists like Edward Snowden and Glenn Greenwald, and companies selling “security” products, have preyed on our natural narcissistic paranoia and our inability to comprehend large numbers to stir up demand for greater privacy protections. The truth is that no one cares about any of the things that we are trying to hide. Seven billion people may have access to your date of birth or mother’s maiden name, but it is still just your neighbors, friends and relatives, the people who already are connected to you and know you exist, who will ever look for you and find you online.

It is time to start thinking about what it is we are doing when we give people the right to erase and hide facts about their lives, and prevent other people from finding them. Scientific inquiry, freedom of thought and expression, artistic freedom, the ability to analyze history and discuss issues of public concern – all of these are human rights as well. For genealogists, especially those of us committed to the idea of building a World Family Tree, it is time that we spoke up and defended our own rights and interests. Outside of the publication of objectionable private facts, there really is no such thing as privacy in the context of a family tree. Nor should there be.

Summary

1. Deceased individuals do not have a right to privacy, so publication of genealogical data about deceased individuals is unrestricted.
2. There is generally no legal limitation on the publication of genealogical data about living individuals, since that data is neither private nor objectionable to a reasonable person.
3. Living individuals may have a right against public disclosure of private facts that would be offensive or objectionable to a reasonable person of ordinary sensibilities.
4. Online genealogy sites may restrict publication of genealogical data about living individuals, but solely as a result of marketing decisions and not because of any legal requirements or risks of liability or litigation.
5. Subject to the rule against public disclosure of objectionable private facts, genealogists are generally free to publish online family trees, and do not need to accede to privacy requests from individuals named on those trees.

Notes

[1] Cooley, Torts 29 (2d Ed. 1888).

[2] Brandeis and Warren, The Right to Privacy, 4 Harvard L. Rev. 193 (Dec 15. 1890).

[3] Amy Gajda, “What if Samuel D. Warren Hadn’t Married a Senator’s Daughter?: Uncovering the Press Coverage that Led to The Right to Privacy” (2008 Mich. St. L. Rev. 35).

[4] Warren committed suicide in 1910.

[5] Prosser, Privacy, 48 Cal. L. Rev. 383 (1960).

[6] Melvin v. Reid, 112 Cal.App. 285 (1931). The 1925 silent film The Red Kimono, produced by Dorothy Davenport, concerned the story of a real-life prostitute in New Orleans who had been accused of murder and acquitted. Because the film character was given the same name as the real-life prostitute, the producer was sued for invasion of privacy. In affirming the plaintiff’s claim, the Court held: “any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation.” Given that the case involved a commercial film, one might re-evaluate whether this decision should rather have been decided based on a right against appropriation of likeness for commercial purposes not endorsed by the character portrayed. There was no need to develop a separate right against public disclosure of private facts in this case, and one wonders whether the result would be the same if it were a newspaper or book that revisited the headline-grabbing case.

[7] In Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927), a Kentucky court recognized a claim against a man who put up a sign in his garage window announcing that the plaintiff owed him money. A more recent example is the Spanish case affirming a European right of erasure, in which the plaintiff complained that a Google search of his name revealed links to two newspaper articles about the foreclosure of his home. Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos (May 13, 2014). In these cases, the courts appear to be creating a right to prevent publication of embarrassing financial disclosures. The great irony in these cases is of course that by prosecuting them, the plaintiffs ensure an even wider dissemination of the facts that they swish to hide. From a free speech perspective, as well as an economic one, these decisions are highly questionable. In each case, the ruling takes a fact that is certainly not private, in the sense that it is learned in the course of business by a third party with no obligation to keep the information in confidence, and yet treats the information as private and confidential.

[8] Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979).

[9] In contrast to American law, German law does recognize a posthumous right of protection of personality (postmortaler Persönlichkeitsschutz). Bundesverfassungsgericht Entscheidung vom 24.02.1971 (1 BvR 435/68) (concerning Klaus Mann’s novel Mephisto).

[10] Prosser, supra, 48 Cal. L. Rev. at 396 (1960), citing Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956) (Supreme Court of South Carolina), a case in which the newspaper reported on the birth of a baby to a 12-year-old mother and her 20-year-old husband. The Court weighed the privacy rights of the parents and child with the public interest in the story and found that the right of the newspaper to publish facts of public interest was paramount. The mother had been married as an 11-year-old and presumably there was an ongoing public debate in South Carolina about establishing a minimum age for a marriage license. The news story was seen as necessary public comment on the issue.

[11] The leading case on this issue is Sidis v. F-R Publishing Corporation, 113 F.2d 806 (2d Cir. 1940), affirming 34 F. Supp. 19 (S.D.N.Y. 1938), concerning William James Sidis, a former mathematical child prodigy who had lectured on the fourth dimension at age eleven and graduated Harvard University at age sixteen. Sidis later abandoned mathematics, shunned publicity and led a quiet life in obscurity as a bookkeeper. The New Yorker magazine sought him out and published a story about him in a positive light. Sidis was devastated by the loss of his anonymity and sued. The Court rejected the suit, finding that the story would not have been objectionable to a normal person.

[12] Katz v. United States, 389 U.S. 347, 351 (1967) (“[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (“a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”).

[13] A similar dynamic explains the lack of gun control laws in the United States as compared to Europe. Americans are generally more suspicious of government, and more willing to tolerate damage by individual actors as a price of greater freedom.

[14] See, for example, the website of the Industrial Investment Council. “The first piece of documentation you need when living in Germany is a proof of residence form. . . . According to German law, you have to register with the Meldestelle within 7 days after your arrival.” http://berlinfo.com/Worktime/Authorities/getting_started/registration/index.htm (visited July 1, 2015).

[15] European data protection laws vary from country to country, but the proposed new privacy laws are supposed to harmonize them. See https://en.wikipedia.org/wiki/Data_Protection_Directive (visited July 9, 2015).

[16] At a recent genealogy conference, I was told that in Belgium one cannot even publish a list of Holocaust victims because of the objections of those families who do not wish to be identified. A similar dispute has arisen in the context of a website listing Holocaust victims from the town of Minden in Germany.

[17] One of my clients argued years ago that instead of Datenschütz (protection of data) they should call these laws Verbrechenschütz (protection of crimes). His perceptive comment has been proven by much of the data on the utilization of the European right of erasure against Google. The BBC has recently put up a website listing the articles it has published which have been removed from Google searches as a result of a request under the new right of erasure. Most of these concern reports on criminal activity, including murder, rape, arson, bank fraud and insider trading. BBC website: http://www.bbc.co.uk/blogs/internet/entries/1d765aa8-600b-4f32-b110-d02fbf7fd379 (visited June 30, 2015).

[18] The trend toward increased privacy rights at the expense of free speech and access to records is not limited to Europe, but is also taking hold in Asia and Latin America.

[19] This extra information can often provide a valuable clue for genealogists. For example, if you know the maiden name of a spouse, you can often find a wedding announcement, real estate record, or other source that will give you the first name that has been hidden as private.

[20] Only a user with editing rights could change a profile from private to public, meaning that the other user would have to be inside the family group of the profile, or a family group member of the profile manager. Collaborators of the manager have edit rights only on public profiles.

[21] There are laws in the United States concerning the collection of data from minors, and this is often used as a justification for age limits on sites such as Facebook and Instagram, as well as Ancestry and MyHeritage/Geni. See Children’s Online Privacy Protection Act of 1998 (COPPA), 15 U.S.C. §§ 6501–6506 (Pub.L. 105–277, 112 Stat. 2681-728, enacted October 21, 1998). But the existence of popular community websites aimed at children, such as Disney’s Club Penguin, which requires only an initial adult authorization, demonstrates that these companies could permit children to become members, with limited safeguards, if they chose to do so. Therefore, the age limits should be seen more as marketing decisions than as efforts to follow legal restrictions.

[22] Communications Decency Act, 47 U.S.C. § 230; Digital Millenium Copyright Act, 17 U.S.C. § 512.