The Public Information Fallacy

98 Boston University Law Review 459 (2019)

64 Pages Posted: 11 Dec 2017 Last revised: 4 May 2019

See all articles by Woodrow Hartzog

Woodrow Hartzog

Northeastern University School of Law and Khoury College of Computer and Information Sciences; Stanford Law School Center for Internet and Society

Date Written: December 7, 2017

Abstract

The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.

In this article, I argue that the “no privacy in public” justification is misguided because nobody knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”

If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value-laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid.

Keywords: public, private, obscurity, trust, surveillance, Fourth Amendment, torts

Suggested Citation

Hartzog, Woodrow, The Public Information Fallacy (December 7, 2017). 98 Boston University Law Review 459 (2019). Available at SSRN: https://ssrn.com/abstract=3084102 or http://dx.doi.org/10.2139/ssrn.3084102

Woodrow Hartzog (Contact Author)

Northeastern University School of Law and Khoury College of Computer and Information Sciences ( email )

416 Huntington Avenue
Boston, MA 02115
United States

HOME PAGE: http://https://www.northeastern.edu/law/faculty/directory/hartzog.html

Stanford Law School Center for Internet and Society ( email )

Palo Alto, CA
United States

HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

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