Genealogical research faces several legal challenges, including compliance with privacy laws, intellectual property rights, and the handling of DNA information, which require strict adherence to regulations and consent. Additionally, navigating historical record access, probate laws, and ethical considerations is crucial for ensuring accurate, lawful, and respectful research outcomes, especially in cross-border cases and legal disputes.
Genealogical research must adhere to legal guidelines regarding privacy, data protection, records access, copyright, probate, ethics, and documentation. A breach of any of these guidelines risks disputes, litigation, and hefty fines. Lack of legal knowledge may also hinder access to crucial records and tarnish the report’s reliability and accuracy.
This guide details eight legal challenges that genealogists must maneuver to ensure their research is factual and legally compliant.
Privacy Laws and Data Protection
Genealogy research involves personal information, including full names and dates, which makes it comfortably covered by privacy and data laws in any jurisdiction. In the US, many of these laws fall under the Privacy Act of 1974 and the General Data Protection Regulation (GDPR).
The Privacy Act, as amended to present, includes Statutory Notes (5 U.S.C. 552a) that protect records with personal identifiers such as a name, social security number, or other identifying number or symbol.
Similarly, the GDPR restricts the processing of personal information, and violations can attract up to 20 million euros or, in the case of an undertaking, up to 4 % of total global turnover of the preceding fiscal year, whichever is higher.
Access to Historical Records
Genealogist research also heavily relies on historical records such as census, birth, marriage, and death records, most of which require permission and navigating several legal barriers. For example, the US National Archives and Records Administration (NARA) restricts census records for 72 years after “Census Day.”
Similarly, the UK restricts access to birth, marriage, and death records for 100 years, especially if the person’s death is not recorded in the register. In Canada, census records are restricted for 92 years and civil records for 100 years.
Note that restrictions and durations may vary between states and provinces; hence, relevant laws must be confirmed.
Intellectual Property Rights
Intellectual property rights may cover additional records crucial for genealogy research, such as photographs, artworks, publications, and other private materials. In most jurisdictions, intellectual property is protected throughout the owner’s life plus additional years after demise.
In this case, the researcher may need to seek permission from the authors before they use any of their pieces. In the US, Works published after 1923 but before 1978 are protected for 95 years from the date of publication. If the work was created but not published before 1978, the copyright lasts for the life of the author plus 70 years.
Use of DNA and Genetic Information
Genetic information helps complement traditional genealogy research, explore haplogroups, and find matches on online databases. For this reason, DNA has become crucial for genealogists seeking to enhance accuracy, reliability, and collaboration.
However, using DNA for genealogical purposes must meet critical legal requirements, especially in obtaining explicit consent. Even the top DNA testing companies like AncestryDNA and 23andMe are bound by laws protecting personal data.
Among the most notable laws regulating the use of genetic information is the GDPR, which requires all EU companies to obtain consent and allow users to withdraw it at any time. Similarly, the California Consumer Privacy Act (CCPA) requires companies in the state to provide clear disclosure of their operation, reserving the rights to data deletion on the consumers.
Heirship and Probate Issues
Heir hunting involves legally guided genealogy research, with several requirements placed on information access, sharing, and presentation. Probate laws vary by jurisdiction, so the probate genealogist must adapt to the area of focus.
For example, California intestate laws require the estate to be distributed to closest relatives in a given order. Conversely, Texas may follow the same route but use a per capita representation distribution method.
In the same way, estate administrators or probate attorneys may only require affidavits, historical records, and community testimony to prove heirship in Georgia. However, New York law goes as far as civil records and DNA to confirm the same.
It is a classic example of the variations and the need for professional genealogists to understand them to ensure compliant research strategies, evidence collection, and presentation.
Ethical Considerations in Genealogical Research
Your heir hunter of choice should be transparent, honest, competent, collaborative, respectful, and compliant with legal and ethical standards. Upholding these ethical standards throughout the process is paramount and ensures a just and respectful resolution of estate matters.
Genealogical and legal bodies like the Association of Professional Genealogists (APG), the International Commission for the Accreditation of Professional Genealogists (ICAPGen), and the American Bar Association (ABA) have outlined high standards of research quality and ethical conduct that heir hunters should follow.
The major challenges in maintaining ethics include balancing the research needs with privacy. Researchers often struggle to protect the confidentiality of individuals and the need to uncover historical facts, especially on sensitive matters like mental health, secret marriages, and adoptions.
Nonetheless, genealogists must navigate this complex landscape to maintain integrity and balance the pursuit of historical truth.
Legal Documentation and Testimonies
Documentation and reporting are critical elements of genealogical research, which, too, must be done in accordance with the law. One key aspect of documentation is to elaborate the analysis, provide source citations, and attach excerpts and copies of all the primary documents, such as images, records, and transcriptions, ensuring they are clearly referenced and labeled.
Therefore, the genealogy researcher must also expertly present evidence persuasively and in accordance with legal standards since they may be called to testify in court.
International and Cross-Border Issues
Genealogical research crossing international borders is also subject to international laws and regulations. Therefore, the researcher must understand data protection laws in foreign countries and how they may impact the research.
Similarly, they must understand cross-border legalities and treaties such as the Hague Convention and how they can impact the process and inheritance claims.
The Legal Challenges of Genealogical Research
Understanding the legal challenges of genealogical research from probate to privacy laws can help conduct your research efficiently and ethically. A legally compliant research comes with a peace of mind throughout the research process helping uncover and preserve family history with integrity and respect.