Legal Affairs

Reclaim The Records Files Freedom of Information Act Lawsuit–US Department of Veterans Affairs

The following announcement was written by Jan Meisels Allen, Chairperson of the IAJGS Public Records Access Monitoring Committee:

Reclaim the Records has previously filed suit in different state jurisdictions—their new Freedom of Information Act litigation is against a federal agency– the US Department of Veterans Affairs. The law suit, filed on September 17, 2018, asks the US Department of Veterans Affairs to provide a copy of the Beneficiary Identification Records Locator Subsystem (BIRLS) Death File. A letter from the Department of Veterans Affairs dated September 13, 2018 states they “remanded the request to their FOIA Officer for further consideration, appropriate processing and issuance of a subsequent IAD”. [IAD means Initial Agency Decision] The case is still pending.

This database contains basic information on about fourteen million deceased American veterans who served in the US military and then later received benefits from the VA, such as healthcare or the GI Bill, between approximately 1850-2017. Each record includes the veteran’s dates of birth and death, dates of enlistment and release, and branch of service. Some years have a little more information available than others, including the veteran’s basic cause of death (i.e. natural or combat-related), gender, and possibly other fields.

Supreme Court shields Commerce Secretary Wilbur Ross from Answering Questions in Census Controversy

The Supreme Court on Monday shielded Commerce Secretary Wilbur Ross from answering lawyers’ questions in a lawsuit challenging his decision to add a citizenship question to the 2020 Census form.

The government had asked the Supreme Court to block questioning of Ross as part of a lawsuit filed by several states, including New York, and civil rights groups. The groups are seeking to stop the administration from adding a citizenship question to the decennial count.

Details may be found in an article by Robert Barnes and Tara Bahrampour in The Washington Post at: https://wapo.st/2R7qbE4.

For background information on this controversy involving the questions to be asked on the 2020 U.S. Census, look at the previous articles in this newsletter by starting at: https://duckduckgo.com/?q=site%3Aeogn.com+2020+census&t=h_&ia=web.

More on the 2020 Census Citizenship Question and Litigation

The following announcement was posted to the International Association of Jewish Genealogical Societies mailing list by Jan Meisels Allen:

As previously reported on the IAJGS Records Access Alert, the addition to add a question about citizenship to the 2020 US Census by the Commerce Department has resulted in at least six lawsuits. The largest lawsuit, which includes more than two dozen states and cities is before US Federal District Court Southern District of New York, Judge Jesse Furman in Manhattan (New York City, NY) who ruled in late July that the case may move forward. Judge Furman also agreed to have Secretary of Commerce Wilbur Ross, and Acting Assistant Attorney General John Grove for the Civil Rights Division of the US Department of Justice be deposed as to why Secretary Ross added the question. There is some question whether Secretary Ross did it at the request of the Department of Justice, as he testified before Congress, or he had wanted to do this all along based on comments he made almost a year before the request to add the citizenship question. Then in late September the Justice Department representing the White House filed a motion to stay discovery pending Supreme Court Review.

Cemetery Case Puts Property Rights Issue before the U.S. Supreme Court

When is a cemetery not a cemetery?

According to Rose Mary Knick, a piece of property is not a cemetery when almost no one believes there are bodies buried in the land.

Knick makes no bones about it. She doesn’t buy the idea that there are bodies buried on her eastern Pennsylvania farmland, and she doesn’t want people strolling onto her property to visit what her town says is a small cemetery. Knick, 69, says her town’s ordinance wouldn’t protect her if people injure themselves on her land and sue. And she says if the town is going to take her private property and open it up to the public, they should pay her. She says she believes that the town was trying to make an example out of her for questioning lawmakers’ decisions.

White House Escalates Fight Over US 2020 Census Question on Citizenship to Supreme Court

The following announcement is from the IAJGS Mailing List:

As previously reported on the IAJGS Records Access Alert, the addition to add a question about citizenship to the 2020 US Census by the Commerce Department has resulted in at least six lawsuits. The largest lawsuit, which includes more than two dozen states and cities is before US Federal District Court Southern District of New York, Judge Jesse Furman in Manhattan (New York City, NY) who ruled in late July that the case may move forward.  Judge Furman also agreed to have Secretary of Commerce Wilbur Ross, and Acting Assistant Attorney General  John Grove for the Civil Rights Division of the US Department of Justice be deposed as to why Secretary Ross added the question. There is some question whether Secretary Ross did it at the request of the Department of Justice or he had wanted to do this all along based on comments he made almost a year before the request to add the citizenship question.

On Friday, September 28, the Justice Department, representing the White House filed a motion to stay discovery pending Supreme Court Review. The motion may be read at: https://apps.npr.org/documents/document.html?id=4951932-Sept-28-2018-Letter-Motion-to-Stay-Discovery.

No, Find-A-Grave Wasn’t Exactly “Hacked”

There are dozens of messages floating around the Internet claiming that the FindAGrave.com web site (a product owned by Ancestry.com) has been hacked and that all the information from the FindAGrave.com site appears on another web site, https://peoplelegacy.com.

It appears that the site at https://peoplelegacy.com republished all the information in violation of copyright laws. In fact, the second web site claims THEY own all the copyrights on all the images contributed by genealogists to Find-A-Grave, including some pictures that I uploaded to Find-A-Grave some time ago. Even worse, my pictures now have a “PeopleLegacy.com” watermark on every one of the images! That strikes me as a rather brazen claim. Those are pictures I took and I don’t recall signing a copyright release to PeopleLegacy.com.

Another claim on PeopleLegacy states “All data offered through PeopleLegacy.com is derived from public sources” which seems questionable.

Let’s set the record straight:

European Parliament Votes in Favor of Controversial Copyright Laws

At this time, the new, restrictive copyright law passed yesterday by the European Parliament will only affect countries in the European Union. However, elements of many European Parliament legislation often show up within a few years in the laws of other countries around the world. The latest law should be a warning to genealogists.

The 438 to 226 vote, described as “the worst possible outcome” by some quarters, could have significant repercussions on the way we use the internet.

Quoting from an article on Slashdot:

Fort Wayne City Council Votes 6-3 against Business Tax Proposal, Saving the Allen County Public Library and Other County-funded Agencies

About two weeks ago, I published A Fort Wayne, Indiana, City Councilman Proposes Eliminating the Annual Budget for the Allen County Public Library at http://bit.ly/2N1DdUX. In the article, I described a proposal by Fort Wayne City Councilman Jason Arp to cut the budget of the Allen County Public Library to the point that it will no longer be able to sustain itself. Arp proposed elimination of Allen County’s business personal property tax. Because the funding of the largest genealogy collection of any publicly-owned library would be reduced or possibly be eliminated, Arp suggested that Amazon should and could replace libraries, thus saving taxpayers money.

The Fort Wayne City Council voted 6-3 last night against the business tax proposal that would have had tremendous impact on the Allen County Public Library and other city entities’ budgets. Three council members voted in favor of the proposal: Arp, Ensley, and Jehl, while the remaining members of the council, both Democrat and Republican, voted against the proposal.

Details may be found in an article by Dave Gong in the (Fort Wayne) Journal-Gazette at http://bit.ly/2onYYjP.

My thanks to the several newsletter readers who wrote to tell me of this victory for genealogists.

Colorado Enacts Consumer Privacy Law Effective September 1, 2018; Federal Action on Privacy Issues

The following is an email message posted to the IAJGS Public Records Access Alert mailing list by Jan Meisels Allen, Chairperson, IAJGS Public Records Access Monitoring Committee. It is republished here with the permission of the author:

Colorado joins the states taking on consumer privacy protections by enacting House Bill 18-1128, signed by Governor Hickenlooper on May 29, 2018 and which becomes effective September 1, 2018. To read the summary see: http://leg.colorado.gov/bills/hb18-1128, and for full text see: http://leg.colorado.gov/sites/default/files/documents/2018A/bills/2018a_1128_signed.pdf. The bill requires entities to implement and maintain reasonable security procedures, proper disposal of documents that contain confidential information, ensure that confidential information is protected when transferred to third parties, and notify affected individuals of data breaches in the shortest time frame in the country.

Covered entities are those that “maintain, own or license personal identifying information (PII) of a Colorado resident”. PII is defined to include: a social security number; personal identification number; password; passcode; official state or government-issued driver’s license or identification card number; government passport number; biometric data; employer, student, or military identification number; or financial transaction device.

Ancestry.com Says 23andMe’s DNA Patent is Invalid

Several months ago, genealogy company 23andMe Inc. filed a lawsuit against rival Ancestry.com claiming false advertising and patent infringement. 23andMe asked the courts to invalidate the “Ancestry” trademark. The lawsuit claimed Ancestry sells a DNA-based ancestry test that infringes 23andMe’s patent. See my earlier article at http://bit.ly/2L9ewBC for the details.

In court yesterday, Ancestry told a California federal judge that the patent is invalid under the U.S. Supreme Court’s Alice standard because it’s not inventive and relies on natural phenomenon.

A decision by the court is expected within a few weeks.

A Fort Wayne, Indiana, City Councilman Proposes Eliminating the Annual Budget for the Allen County Public Library

The Allen County Public Library in Fort Wayne, Indiana, contains the largest genealogy collection of any publicly-owned genealogy in the U.S. It is also one of the largest research collections available anywhere, incorporating records from around the world. Thousands of genealogists travel to Fort Wayne every year to take advantage of the resources available in this unique collection. While in the city, these same genealogists obviously spend millions of dollars at local businesses, including hotels, restaurants, and more. The money spent by genealogists are an immense help for local business people.

Now Fort Wayne City Councilman Jason Arp has proposed cutting the budget of the Allen County Public Library to the point that it will no longer be able to sustain itself. Arp recently proposed to eliminate Allen County’s business personal property tax. Arp suggests that Amazon should and could replace libraries, thus saving taxpayers money.

A European Union Court Rules that Online Photos Can’t Simply be Republished without Permission

A few weeks ago, I reported a Virginia federal court decision that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. The decision is controversial, is not a landmark ruling that needs to be enforced by other courts, and may be overturned by a higher court before long. You can read more about that ruling in my earlier article at: http://bit.ly/2MxLsEU.

Now a European Court has ruled almost the opposite: internet users must ask for a photographer’s permission before posting their images online, even if the photos were already freely accessible on other websites. The court stated, “The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author.”

U.S. Census Bureau Takes Hits from Lawsuits, GAO Review, and Cancelled Contract

Just 21 months before the next decennial count, the Census Bureau—under acting leadership—faces challenges in the courts, from auditors, and from a mishandled printing contract for key forms.

According to a report by Charles S. Clark in the RouteFifty web site:

“Commerce Secretary Wilbur Ross continues to confront legal challenges to the reasoning behind the decision to go against agency researchers’ advice and add a politically sensitive citizenship question to the 2020 questionnaire.

(US) Senators Harris and Carper Introduce Legislation to Ensure Gender Identity Sexual Orientation to 2030 Census

The following announcement was posted to the International Association of Jewish Genealogical Societies (IAJGS) mailing list by Jan Meisels Allen and is republished here with her permission:

Senator Kamala Harris (D-CA) and Senator Bob Casey (D-PA) introduced legislation that would require the 2030 US census to add questions about gender identity an sexual orientation. The focuses is to expand data collection so that the LGBTQ community is fully accounted for in government resources.

In addition, the bill entitled, Census Equality Act, would require the American Community Survey to added questions on these topics to the 2020 version. Every year 3.5 million households talk this in-depth questionnaire.

DNA Testing by the Canadian Government to aid Deportations Leaves Plenty of Room for Misinterpretation and Mistreatment

The Canada Border Services Agency recently has been collecting the DNA of immigrants and using a genealogy DNA website to find and contact their distant relatives and establish their nationality.

Border security has become a political hot potato with the arrival on foot from the United States of 30,000 asylum seekers since January 2017, putting strains on Canada’s refugee system and provoking a public backlash. Most of the refugees being refused entry are not U.S. citizens escaping the political turmoil south of the Canadian-U.S. border. Instead, most are originally from other countries, often ones that do not have extensive records of their own citizens’ births or other vital statistics.

Canada announced last week it was expanding the collection of biometrics such as fingerprints and photos for refugee claimants, individuals facing extradition, and foreign nationals seeking a temporary resident visa, work permit, or study permit. CBSA claims it always obtains consent from the individual before submitting their DNA to these websites.

Reclaim The Records wins a Legal Request for the New Jersey Death Index

Thanks to the efforts of Brooke Schreier Ganz and Reclaim The Records, all of the New Jersey death index records for about half of 1920-1924, all of 1925-1929, and then from 1949 to 2017 are now available online. That is despite an earlier request by a different organization that “…tried to get a copy of the very same death index from the New Jersey Department of Health on his own. Oh no, said an attorney for the state to [you], we can’t just give you a copy of the death index! Why, we have rules about mortality data, and privacy!”

Reclaim The Records took a different approach by hiring an attorney and filing a similar request under New Jersey’s Open Public Records Act (OPRA). The request was soon filled without resistance by the state. The information supplied is an INDEX, not images of the original records.

Best of all, it’s now all online for free at www.NewJerseyDeathIndex.com!

You can read more in the report by Brooke Schreier Ganz at http://bit.ly/2NN1RWk.

U.S. Census Should Be More Transparent About Cyber Protections, Former Officials Say

The U.S. Census Bureau will conduct its first largely online decennial census in 2020 but hasn’t said how it will secure the process. The U.S. Census Bureau should detail for the American people how it will secure their information as it prepares to accept online questionnaires for the first time during the 2020 decennial survey, former top government cyber officials said Monday.

That should include technical details about how the bureau will encrypt questionnaires and whether it will encrypt them both in transit and once they’ve arrived in government computer networks, the former officials said in a letter organized by a division of Georgetown University’s Law Center.

Details are available in an article by Joseph Marks in the Route Fifty web site. Click here to read it.

(US) Census Comments Invited on Proposed Information Collection 2020 US Census

The following message was posted to the International Association of Jewish Genealogical Societies (IAJGS) mailing list by Jan Meisels Allen, Chairperson of the IAJGS Public Records Access Monitoring Committee:

The (US) Federal Register published on June 8, 2018 an invitation to the public to submit comments on proposed information collection for the US 2020 Census. Comments must be received by August 7, 2018.

Concern is that there not be an undercount of people living in different areas—cities, towns, rural areas as that results in the loss of federal funds. The undercounts may affect children, minorities including Asian Americans, Latinos, African Americans. American Indians and Alaska Natives, homeless, low incomes and people of Middle Eastern descent.

A major concern to some, and one which is the subject of several law suits is the addition of a question on citizenship which may deter some from responding. This has been discussed in previous IAJGS Record Access Alerts.

You Can Inherit Facebook Content Like a Letter or Diary, German Court Rules

A German court ruled Thursday that Facebook content can be passed onto heirs in the same manner as letters, books, or diaries are passed on today. The ruling comes after the parents of a teenager who died in 2012 after being hit by a train argued Facebook should allow them to access her account, including her private messages, to determine whether she committed suicide.

You can learn more at http://alturl.co.

Keep in mind that this is a decision by a German court. It probably will not affect the rules in other countries. Instead, you might want to think about what happens to your Facebook account (and other accounts as well) after your demise.

 

Citizens for Responsibility and Ethics in Washington Presses the U.S. National Archivist on Record Preservation

A nonprofit legal watchdog on Friday asked the national archivist to investigate the reported disappearance and destruction of records linking immigrant families separated at the border.

The request was prompted by a July 5 New York Times report, which said that Customs and Border Protection officials had deleted records with family identification numbers in hundreds of cases, according to two Department of Homeland Security officials who spoke to the Times anonymously.

DHS spokeswoman Katie Waldman denied that the agency had destroyed any such records.