Touching the Matter of Privacy

Time: 5:15 p.m.

Place: Lea Library, 6th floor of Van Pelt Library, University of Pennsylvania

Dead men tell no tales. But if you tell tales about them, you may be committing a tortuous violation of their transmortem right to privacy. Various courts in the U.S. and elsewhere have held that, under certain circumstances, a decedent has a cause of action against a living person, which may be brought by the decedent's proxy or representative. These legal provisions have helped create an atmosphere of considerable irresolution in secular society surrounding questions of postmortem interest and harm. Can the dead suffer harm as a consequence of what we, as historians, do with information about them? Does personhood persist beyond death? Or does death render a person something entirely other: a corpse, an inanimate object, what Thomas Jefferson in 1824 called mere matter unendowed with will, the ghostly effect of limited testamentary power? Most recently in the U.S., this irresolution has manifested itself in relation to the matter of privacy protection in the domain of personal health information.

The test-case is Richard Nisbett (1753-1823), at various points a resident of London, the Caribbean island of St. Kitts, and Philadelphia, who suffered a mental breakdown and was admitted to the Pennsylvania Hospital in 1800, where he remained until his death. Nisbett wrote extravagantly of sea voyages he claimed to have taken with Captain Cook and other adventurers. He also produced vivid watercolor illustrations and maps of these fantastic voyages, some of which are archived at the Historical Society of Pennsylvania, where access to them is unrestricted. However, due to provisions of the federal Health Insurance Portability and Accountability Act (HIPAA), enacted in 2003, one crucial document relating to Nisbett's manuscript casebook kept by Samuel Coates, one of the caregivers at the hospital, is no longer freely accessible to researchers. The protection of patients' (and their descendants') right to privacy is HIPAA's aim, and it makes no distinction between Nisbett, who died almost two centuries ago, and you or me living today. The new legislation thus has a double effect: it frustrates historical research on early American health and medicine, and it raises provocative questions about privacy and historiography. Who owns and administers the past? To what degree are we, as historians, bound to consider Nisbett's privacy, whether according to his conception or ours?

Max Cavitch is Associate Professor and Undergraduate Chair of English at the University of Pennsylvania, where he is also a Council member at the McNeil Center for Early American Studies, and a member of the Collaboration Committee of the Psychoanalytic Center of Philadelphia and Penn's Department of Psychiatry. He is the author of a book, American Elegy: The Poetry of Mourning from the Puritans to Whitman (2007), and of various essays and articles on American literature, transatlantic literary relations, poetics, and film.