The Public Information Fallacy

Privacy and Security

Article Snapshot


Woodrow Hartzog


Boston University Law Review, 2018 (forthcoming)


Generally, “public” information is not given privacy protection. Often, labelling information as “public” is used to justify surveillance and data collection. However, the term “public” is not clearly defined. Because it has important consequences, “public” information should be clearly defined.

Policy Relevance

Different definitions of “public” have important consequences.

Main Points

  • The idea that public information should not be given privacy protection is well established in U.S. law.
    • In privacy suits brought against private-sector entities, courts rule that a plaintiff should not expect public information to remain private.
    • The FBI is not required to use warrants to install surveillance equipment in public places.
  • The idea that there is no privacy in public is used to justify research practices, information flows, data collection and surveillance.
  • The term “public” has no set definition in law or policy; given its importance, the term should be defined more clearly.
  • Public records, that is, information, that are created or stored by government entities, present privacy problems when they are aggregated into large, searchable data collections.
    • The Supreme Court has ruled that members of the public might have a legitimate right of privacy in obscure public records.
    • Other cases have protected privacy rights in medical information or tax information, even when this information is collected and stored by government.
  • Privacy law often refers to “personally identifiable information,” but this term has no fixed definition.
    • Some define this as any information that could identify a person.
    • Some define it as any information that is “non-public.”
    • The Gramm-Leach-Bliley Act does not regulate information that is “publicly available.”
  • Many define “public” information as information that is hypothetically accessible to anyone, such as a Twitter account.
    • Some agree that public information should not be private.
    • Others argue that only acts of public significance or “governance-related” acts should be “public.”
  • “Public” information could include:
    • Any information that could have been accessible to anyone;
    • Any information controlled, designated, and released by state actors.
    • Any information that is not private.
  • Because the definition of “public information” has important consequences, it should be clearly defined.


Get The Article

Find the full article online

Search for Full Article