Document Type
Book Chapter
Publication Date
1-2026
Editor(s)
Elisa Orrù & Ralf Poscher
ISBN
9781509983728
Publisher
Bloomsbury Publishing
Language
en-US
Abstract
The main thesis of this chapter 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 recognises what is at stake. By disposing of the myth that there is an objective and dispassionate concept of public information, judges and lawmakers can clear the way for information rules based on overt value choices. In short, if the concept of ‘public’ is going to shape people’s social and legal obligations, its meaning and neutrality should not be assumed.
My argument is based on a fundamental ambiguity: courts and lawmakers have failed to clarify the concept of public information. This ambiguity has resulted in a confused body of doctrine and frustrated attempts at clear, cogent policy surrounding the collection, use, and disclosure of information. The time has come to end this confusion.
My argument proceeds in two parts. First, I survey the law and literature to propose three different ways in which ‘public information’ is currently conceptualised: as a description, as a designation, or as the inverse of ‘private information’. These three notions all work differently, serve different values, and cause different problems.
Second, I make the case for clarity. Law and society should treat the notion of ‘public information’ as a value-laden construct that is not self-defining. Thus, whenever the concept of ‘public information’ is invoked to justify surveillance and data practices, it should be scrutinised and clarified. Regardless of whether policymakers and society think of public as a description, designation, or the inverse of privacy, our analytical frameworks for making that determination are out of whack. There must be some workable way to determine what information should be broadly available to all in the data commons and what sorts of practices are generally acceptable. If everything is private, then nothing is. And if nothing is private, we all suffer.
To that end, I propose that two concepts should be incorporated into the calculus that determines whether information is public: obscurity and trust. These two concepts play a key role in shaping people’s decisions about when, where, how, and with whom to share information or interact with others.
Recommended Citation
Woodrow Hartzog,
Chapter 14: Obscurity and the Fallacy of No Privacy in Public Information
,
in
Conceptions of Data Protection and Privacy: Legal and Philosophical Perspectives
283
(Elisa Orrù & Ralf Poscher ed.,
2026).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4201
Included in
Computer Law Commons, Internet Law Commons, Law and Society Commons, Science and Technology Law Commons
Comments
Copyright © Woodrow Hartzog. The editors and contributors severally 2026. This chapter is published open access subject to a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence (CC BY-NC-ND 4.0, https:// creativecommons.org/licenses/by-nc-nd/4.0/). You may re-use, distribute, and reproduce this work in any medium for noncommercial purposes, provided you give attribution to the copyright holder and the publisher and provide a link to the Creative Commons licence.