Why is the FamilySearch.org Family Tree public?

From time to time, I get into discussions about the public vs. private issue with online family trees. From my own standpoint, creating a "private" family tree verges on being downright silly. Although taking that position almost immediately elicits a variety of responses, some of which are rather vocal and emotionally laden. For example, I could go online and freely obtain a copy of my own father's birth certificate. However, today, the Arizona State Genealogy website is no longer functioning and all the links to the website are broken. In most states of the United States, there are time limitations on the access to such records. Arizona, for example, limits the availability of birth records to those more than 75 years old and death records to those more than 50 years old.

The explanation for this comes from the Arizona Department of Health Services website which states:

Arizona is a "closed record" state. That means that vital records are not public record. Arizona law restricts the public's access to vital records as follows to protect the confidentiality rights of our citizens. A.A.C. R9-19-403 specifies that only the following may receive a certified copy of a birth certificate:

The eligibility list is as follows;

• Registrant (self)
• Parents
• Spouse
• Grandparent
• Adult Child
• Adult Brother or Sister
• Guardian Having Legal Custody or Control of a Minor Child
• Foster Parents
• Attorney Representing the Registrant
• Attorney Representing the Biological Parent(s) in an Adoption Proceeding
• Attorney Representing the Adoptive Parent(s) in an Adoption Proceeding
• Adoption Agencies Representing Adoptive or Biological Parents
• Persons or Agencies Empowered by Statute or Appointed by a Court to Act on the Registrant's Behalf
• Genealogical

The Genealogical exemption is explained as follows:

A genealogist is eligible for a certificate that is NOT public record if all of the following criteria are met:

• The applicant establishes a blood or current marital relationship to the individual whose record they are requesting.
• Acceptable types of credible documentation to establish relationship: Birth certificate, Death certificate, Marriage certificate.
• Non-acceptable types of documentation to establish relationship:
• Pedigrees, Lineage charts, Family trees.
• The applicant submits a signed application.
• The applicant provides valid government issued identification or notarized signature on the application.
• The application submits the appropriate fee(s). 

A genealogist requesting a certificate that IS public record does not need to establish relationship to the individual whose record they are requesting but must submit the following:

• A signed application
• The applicant provides valid government issued identification or notarized signature on the application
• The appropriate fee(s).

The "Registrant" is the person named on the document. Obviously, the registrant is not going to apply for a death certificate.

What motivates the governments to restrict access to vital records for a period of years? The main reason is the word "fee." This is a money making enterprise for governments. Oh, you say, what about privacy? This is perhaps the reason why the formerly free access to these records has now been taken off line?

Privacy is a complex issue and one that is ill-defined by codified law or court decisions. It is very commonly stated that dead people do not have any sort of claim to privacy. But even this is a disputed area. Here is a good summary of the issues of which rights survive death.

Smolensky, Kirsten Rabe. “Rights of the Dead.” SSRN Scholarly Paper. Rochester, NY: Social Science Research Network, March 9, 2009. http://papers.ssrn.com/abstract=924499. See also http://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v37n03_cc4_smolensky_final.pdf

Knowingly or unknowingly, genealogists intrude on these legal issues on a regular basis. Now, I can return to the topic raised by the title to this post. Why is the FamilySearch.org Family Tree public? The simple answer is that only those portions of the family tree dealing with dead people are public and therefore, with some limited exceptions, the entire issue is avoided. Genealogy is inherently a "public" inquiry. No one has exclusive "rights" or ownership of their ancestors. Big or small, we all have a cloud of relatives who share our relationship.

There may be a host of personal justifications for withholding historical data and profit may be one of the most common, but from a realistic historical standpoint, history is history and we should report it as completely and accurately as possible. If we withhold historical facts because of our own current prejudices, we are in reality and in fact trying to re-write history. This is why the Family Tree must be public. If it is to be at all accurate, it must contain an accurate representation of history. Anything less than this is fantasy.