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Genealogy Guide:

Law and Genealogy

Fortunately, there are not too many laws you need to be aware of when you are researching your family's history. Most of the laws and law-related items we have listed below have been listed for the purpose of increasing your understanding and knowledge of the genealogy field, as opposed to suggesting restrictions to your research.  

A. Access To Records

Most of your research will not require you to seek access to sensitive materials that some person, group, or agency will want to keep from you. Most resources are at your fingertips at various libraries, archives, websites, and so on. However, as your research progresses you may find that a particular record exists but that you cannot easily access it because of restrictions of some kind.

There are a few key concepts to be aware of. First, private record holders are not under the same responsibility to provide information to the public as government entities are. More specifically, they are not bound by freedom of information laws (which is not to say that all information about them is able to be kept secret from the public). With private organizations you may need to pay a fee to view their library or wait several weeks before they are able to see you (if they are willing to see you at all). With this said, most private entities are responsive to polite inquiries.

Second, the predominant reason you will be denied access to records is for the sake of privacy. The best-known example of this in genealogy is the United States Census records. There is a 72-year restriction to viewing these records. The latest record you can view is the 1940 Census. The 1950 Census will not be available for public viewing until 2022. The law behind this restriction is 44 U.S.C. § 2108(b) which, essentially, codifies an agreement between the Census Bureau and the National Archives (see 36 C.F.R. §1256.4 (a)(3)).

Lastly, always keep in mind that freedom of information laws are jurisdiction- specific. For example, the Freedom of Information Act applies to the federal government and not to Maryland. Likewise, the Maryland Public Information Act applies to Maryland and not Virginia.  

For further reading see:

1. The Freedom of Information Act (FOIA): 5 U.S.C. § 552

2. Information about FOIA on the website of the United States Department of Justice  

3. The Privacy Act: 5 U.S.C. § 552a

4. Maryland Public Information Act (PIA): State Government Article §§ 10-611 through 10-630

5. Maryland Public Information Act Manual (14th Ed.) (October 2015) from the Maryland Attorney General's Office

6. Article about genealogy and privacy from the author of Everything Family Tree Book: Research and Preserve Your Family History and a member of the Association of Professional Genealogists.

B. Laws Regarding Cemeteries

Sometime during your family history research you will probably visit some cemeteries. Many are well kept. However, some are overgrown and in varying states of disrepair—some shockingly so. This obviously saddens the researcher and may have them wondering if something ought to be done. 

Another issue that may come up is access to a cemetery that is abandoned or on private property.

If you have questions or concerns about the cemeteries where your relatives are buried, the website of the Office of Cemetery Oversight of the Maryland Department of Labor, Licensing & Regulation has a great amount of interesting and useful information, including relevant laws.

C. Copyright Law

At the beginning stages of your genealogic research, copyright law is probably not a concern. The beginning researcher is usually just combing through documents for dates, collecting family photos, interviewing relatives and so on. However, as your research becomes more in-depth and sophisticated you may decide you want to write a book about your family, or create a family newsletter, or perhaps contribute an article to a newspaper, magazine, or genealogy periodical. This is when you need to be aware of copyright laws. (As a side note, also be aware of privacy concerns if you plan to include a living family member's name and/or private information in a publication. Be sure to get their permission first.)

Copyright law is complex. Some attorneys can earn a living by practicing only in this one, extensive area of law. As a family history researcher who is contemplating writing something formal about their family, there are two main things to keep in mind. First, do not copy extremely large segments of someone else's work. Second, if you do want to copy a reasonable-sized portion, be sure to put quotations around the copied material and cite the source, e.g., “The John Smiths of Belgium were descended from the John Smiths of Denmark, and were a hearty and robust people with a fondness for beer, song, and storytelling.” (Edgar Smith, The Wonderful Smiths of Western Europe, 1974)

Many times there is a question as to whether or not to cite an idea. The answer is “yes” if you are pulling the idea from another source, and “no” if it is your original idea. Let's use the previous hypothetical quote as an example. If you wrote, The John Smiths apparently came from northern Europe and were known for their social ways, you would not have to use quotations, but you would still have to cite the source of this idea/information.

Here are some resources for further information:

1. Copyright law is contained in title 17 of the U.S. Code.  

2. The “Fair Use Doctrine” is located at 17 U.S.C. §107. This section of copyright law allows you to use the work of others under certain circumstances without copyright infringement (but remember that you still need to cite your sources in the types of situations discussed above).

3. The website of the United States Copyright Office has information you may find useful, particularly in their Frequently Asked Questions (FAQ) section. (On the FAQ page, scroll down to the subsection titled “Can I Use Someone Else's Work? Can Someone Else Use Mine?”)

4. The Association of Professional Genealogists has a web page titled Copyright & Genealogy.   

5. An article about genealogy and copyright law, by attorney Gary Hoffman, can be found here.    

D. Do Professional Genealogists Have To Be Licensed?

There is no federal or Maryland law requiring Genealogists to be licensed or certified. However, you may be interested in looking at the Code of Ethics of the Association of Professional Genealogists to get a feel for what is generally expected within the profession. For comparison, you may also want to look at the Code of Ethics and Conduct of the Board for Certification of Genealogists.

E. What The Family History Researcher Should Know About Legal History

Laws change over time, and those changes might affect your research. A very good example of this is naturalization records. The National Archives gives a summary of the changes that have occurred over time with respect to naturalization law and process, as well as how those changes have affected the record keeping and record storage process. Click here for the summary.

Death records are another good example. As the Maryland State Archives explains, Maryland laws regarding the recording of deaths have changed over time and compliance with the recording laws has not always been complete (see, http://www.msa.md.gov/msa/refserv/html/deathhis.html).     

In addition to legal changes affecting where (or if) you will find records, legal changes can open new avenues of research that you may not have contemplated before. For example, the United States Immigration Office offers summaries of immigration legislation from 1790 to 1996. The changes over time might provide valuable information to family history researchers who are conducting very in-depth research with respect to where their families came from and what laws affected their emigration to America.


F. Legal Occurrences That Make It Difficult To Track Your Ancestors

Not only do laws change over time, but laws can change people. These changes can put up a “brick wall” to your research. Of course, once you discover the source of the problem that brick wall may come tumbling down.

If you're having problems finding a particular ancestor, consider some of these legal occurrences:    

1. Name changes—perhaps an ancestor had his/her named legally changed.

2. Adoption or placement in a foster home

3. Incarceration or institutionalization

4. Migration away from America with a new citizenship elsewhere

If you suspect any of the above, or anything similar, consult a good genealogical research guide regarding what your next step should be.