As Congress and tech giants focus on the privacy of the present, future historians will have the responsibility of respecting the privacy of the dead.

But how can historians respect privacy when their craft often depends on the exposure of writings, conversations, artifacts and events that were intended to be, and often were, private? Recent award-winning social histories present chapters of “secrets” and tell the “untold story” of the private lives of ordinary people. Military and diplomatic historians scour caches of previously top-secret files with all the lurid personal details of spies and their targets.

AD

AD

In my own research, I have read thousands of personal letters, many of which are intimate correspondences among family members, friends and lovers. The editors of one set of letters promise tales of “bastardy” and “romance” in the life of a Founding Father — details that were not revealed to the public until historians dusted off his documents.

Now, the sheer amount of private information stored in data servers will require historians to rethink how they weigh the pursuit of historical knowledge with the rights of the dead, even if those rights are not codified in law.

To be sure, expectations of privacy have changed over the centuries. The ancients bathed in public, medieval families lived in one-room homes and sinners confessed their private transgressions before the whole church. The airing of dirty laundry became an apt metaphor for industrial urbanites, and postcards and “party line” neighborhood telephones provided about as much privacy as prisoners have today.

AD

AD

While those in previous eras enjoyed very little privacy, information about their private lives rarely escaped the confines of their family, town or parish. Once the technology emerged to disseminate those details to strangers beyond the local community, so too did the contemporary notion of a right to privacy.

In an 1890 Harvard Law Review article, Boston lawyer Samuel Warren and Louis Brandeis, a future Supreme Court justice, declared that this modern right to privacy protected individuals “from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.” The authors insisted, however, that this right to privacy “does not prohibit any publication of matter which is of public or general interest.”

Modern debates over privacy have centered on the proper balance between an individual’s right to privacy and the public’s right to know. But this debate has been framed exclusively in terms of privacy of the living. Should there be privacy for the dead?

AD

AD

Now that our private lives are recorded and broadcast more than ever before, historians might think their job will be much easier. But in addition to the problem of sorting through and making sense of so much data, there’s another problem: the temptation to assume it’s all fair game.

Historians who unearth evidence of scandal, betrayal and transgression are, unlike their contemporary journalists and bloggers, rarely accused of gossip or detraction. None of us are sued for libel, declares bankruptcy or seeks asylum — threats many journalists, bloggers and whistleblowers regularly face.

Why the difference? Under the law, the dead no longer possess personal rights. Even in the case of false and malicious statements, the dead enjoy no legal recourse.

AD

But reputation still matters. In fact, the living try to manage their posthumous legacies with tombstone epitaphs, postmortem memoirs and eponymous philanthropy. And the law respects their intentions in a last will, which lawyers defend as contractual obligations. In Shakespeare’s tragedy “Othello,” the sinister Iago counsels his master, “Who steals my purse steals trash … But he that filches from me my good name / Robs me of that which not enriches him, / And makes me poor indeed.” If we respect the purse of the departed, why not their good name?

AD

Many governments, libraries and archives already have policies that respect the wishes of the deceased through embargo periods and restricted access to the public. Even so, publicly disclosing the private lives of others, especially when divulging their faults, demands a legitimate reason: to understand a historical event or phenomenon — including the history of gossip itself — or even to serve as moral edification for readers, particularly in the case of public figures.

But the airing of damaging or embarrassing evidence cannot be justified by a mere appeal to transparency, idle curiosity or vicarious drama — the common trade of some popular histories. Such reputation robbery hurts not just the individuals involved but also the whole community. If society is a partnership among the living, dead and unborn, then historians should interpret figures from the past, even those with mortal failings, with as much justice and charity as we ought to extend to the living. History is not gossip about dead people.