Closing Death Records — The Logical Flaw

One of the misperceptions with which we have repeatedly had to wrestle in recent years has been that ALL Personally Identifiable Information (PII) by default must be safeguarded.  For many legislators in recent years, it is almost a reflexive belief that the best or only way to fight identity thieves is to close the records that thieves might have used.  At this level of thinking, rarely do current decision-makers distinguish between the active PII of the living from records of deceased individuals.  It is this flawed logic that was given as the rationale for the provisions of Section 203 of the Bipartisan Budget Act of 2013 limiting access to and the content of the SSA’s Death Master File.

May I suggest that death changes many things!

Ironically, some of the best examples of the impact of passing this milestone flow from that experienced by living individuals erroneously reported as deceased.   

[Although the video of this 60 Minutes episode is now behind a pay wall (if still available at all), a transcript of this broadcast was reflected at this link when accessed on 31 October 2018.]

The lesson: The personally identifiable information of persons “known” to be dead (even if erroneously so) loses its value, thus thwarting its abuse by identify thieves!

My thesis is that, until recently, as a society we recognized the distinction between active personally identifiable information and the records of deceased individuals.

The European Union still does.  Although RPAC has railed against many provisions of the European Union’s Data Protection Regulations (e.g. –“Right to be Forgotten”), I just note that the European Union Data Protection Regulations specifically recognize this distinction and even goes so far as to declare that “(27)  This regulation does not apply to the personal data of deceased persons.”  

See page 5. (With thanks to Jan Meisels Allen for highlighting this and related references.)

I am recalling another of our colleagues sharing a discussion he once had with a physician during which the doctor declared the then widely held belief that “The Deceased do not have privacy rights!”

Because of the way in which US privacy law has evolved, it is more difficult to find as specific a provision in either federal or state statutes.  An excellent discussion of the contrast between the European Union approach to a comprehensive privacy statute and implementing regulations and the path followed in the United States is found at:

Drawing largely upon case law instead of statutory language, the usual source for this concept is Section 652I of the Restatement of Torts: “Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.” [3 Restatement Torts, 2d, § 652I, p 403. Emphasis added.] (With thanks to Judy Russell for providing this citation).

The Supreme Court of Michigan cites to this Restatement provision in ruling that the Medical Examiner’s autopsy report documenting that the death of a prominent judge was a suicide and should be made available to a journalist in response to a Freedom of Information Act Request.  The opinion of the court, separate opinion and dissenting opinion provide an extensive discussion of various approaches to this situation and the basis for their ruling: .

My assessment is that the operative current paradigm fails to distinguish between the essentially different characters of active personally identifying information from that of the deceased.  As long as this illogic survives, there is little chance that the utility previously afforded to genealogists and other legitimate historical users of the SSA’s Death Master File can be restored, or that we will have appropriate access to its possible successors.   Unfortunately, this same logical flaw burdens access to fact of death information found in the vital records of many of the fifty states, five territories and two independent cities making up the vital records community of the United States.

In coming months I anticipate that several opportunities to influence the path forward to an enduring solution may present themselves although rarely accompanied by an invitation to the genealogical community to do so.

The need for a major educational effort on the part of the genealogical community and other legitimate historical users of the Death Master File is clear.

Stay tuned for further suggestions on how best to bring about this much needed paradigm shift.

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Legal Advisor to Federation of Genealogical Societies; Former Associate Dean, Texas Wesleyan University School of Law; Colonel (retired), JAGC, USA

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