Postmortem Privacy

73 Pages Posted: 22 May 2024 Last revised: 28 May 2024

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

University of Pennsylvania Law School; Yale Information Society Project, Yale Law School

Anita L. Allen

University of Pennsylvania Law School

Date Written: May 20, 2024

Abstract

Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person's death. The "no-privacy-right-for-the-dead" doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement early on and the divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining whether, when, and how the law should extend privacy rights after death. We begin by mapping what we call "postmortem privacy," revealing both the surprisingly wide extension of privacy protections after a person's death, and the haphazard, inconsistent, and at times incoherent state of the law. We then interrogate the array of interests that could justify postmortem privacy rights. We first situate this analysis in the law's "jurisprudence of exclusion," which withholds rights from entities that lack traits deemed essential for rights ascription. We then consider why, despite the initial impetus to deny rights to the dead, the law increasingly gravitates toward doing so. The best reasons to extend postmortem privacy are rooted, not in the ongoing interests of the dead, but in the interests of the living and society. In particular, living individuals have interests in the treatment of their future deceased selves that we denominate the interests of the "future-decedents." The living also have interests tied to their deceased relatives and loved ones that we designate the interests of the "relationalliving." Finally, society has a collective interest in treating the dead with respect.

Keywords: privacy, postmortem, posthumous, right of publicity, data privacy, intellectual property, digital replicas, artificial intelligence, death, first amendment, wills, trusts, inheritance, rights, decedents, relational privacy, antemortem, digital assets, copyright, dead, jurisprudence of exclusion

JEL Classification: J15, J24, J49, L82, L86, K11, K13, K22, K34, K39, M31, O31, O33, O34, O35, O38, Z11, Z28

Suggested Citation

Rothman, Jennifer E. and Allen, Anita L., Postmortem Privacy (May 20, 2024). 123 Michigan Law Review, 2024, U of Penn Law School, Public Law Research Paper No. 24-23, Available at SSRN: https://ssrn.com/abstract=4834871

Jennifer E. Rothman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

Anita L. Allen

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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