Postmortem Privacy: Anita Allen, Professor at University of Pennsylvania Carey School of Law

There has never been a more important time to revisit the common claim that privacy rights terminate with a person’s death. Today’s technology makes possible the reanimation of dead celebrities and ordinary people alike, whether to produce new performances by screen legends like James Dean or to use the voices of massacred children to advocate for gun control in Congress. Increasingly, when we die we leave behind troves of digital data, including social media posts and emails. Images of the dead continue to generate controversy and societal disapproval, with a mix of legal tools to address them. Consider the recent outcry after supporters of Robert F. Kennedy Jr.’s presidential campaign mimicked his renowned uncle, President John F. Kennedy, in an advertisement that aired on the Superbowl, or the successful lawsuit brought by basketball legend Kobe Bryant’s widow when crash-scene photos showing his dead body were circulated to the public. 

The law today remains in a nether world, with a mix of decisions pointing in opposite directions as to whether to recognize or reject postmortem privacy. The valence is shifting toward expanding postmortem rights, as exemplified by the exponential growth in state adoption of postmortem right of publicity laws and the increasing number of federal statutes that expressly protect the privacy of the dead, with more seemingly on the way. The dead are increasingly persons of interest for privacy advocates, litigants, and in the economic marketplace. Yet there remains jurisprudential confusion and disagreement over whether, when, and how the law should extend privacy rights to the deceased.  Addressing this confusion and disagreement is the aim of our article. Thus far, consideration of the topic has been either in passing or largely focused on a specific issue like digital assets or reanimation of performers in isolation. The aim of this article is to step into this chaotic state of affairs and to provide a broader theoretical analysis to explain this growing impetus. Doing so is essential to provide guidance at this crucial time for how the law should address concerns over privacy rights for the dead and their living relations and consideration of how such rights must be shaped and limited. 

Anita L. Allen is the Henry R. Silverman Professor of Law and Professor of Philosophy at the University of Pennsylvania Carey School of Law. A graduate of Harvard Law with a PhD from the University of Michigan in Philosophy, Allen is internationally renowned as an expert on philosophical dimensions of privacy and data protection law, ethics, bioethics, legal philosophy, women’s rights, and belonging in higher education. She was Penn’s Vice Provost for Faculty from 2013-2020 and chaired the Provost’s Arts Advisory Council.