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The Public Information Fallacy

The goal of this article is to highlight the many possible meanings of “public” and make the case to clarify the concept in privacy law. The main thesis is that because there are so many different possible interpretations of “public information,” the concept cannot be used to justify data practices and surveillance without first articulating a more precise meaning that recognizes the values affected. The author believes the law of public information has failed to clarify whether the concept is a description, a designation, or just another way of saying something is “not private.” In this document, a review of the law and discourse of public information is provided, a survey of the law and literature to propose three different ways to conceptualize “public information” is discussed and finally, a case for clarity is made.

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 results in a free pass 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 even 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. 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?”

The main thesis of this article is that 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.

"The Public Information Fallacy" by W. Hartzog Northeastern University School of Law Research Paper No. 309-2017