Public is not simply defined. Public is not just what can be viewed by others, but a fragile set of social conventions about what behaviors are acceptable and appropriate. There are people determined to profit from expanding and redefining what’s public, working to treat nearly everything we say or do as a public work they can exploit. They may succeed before we even put up a fight.

We are all public defenders.

Oh, we love “public”. From public schools to public servants, we are all public defenders.

In popular discourse, most debate assumes either you are doing something that is public, or you are not. But in reality, the vast majority of what we do exists on a continuum that is neither clearly public nor strictly private. So why do we get this disconnect between rhetoric and reality? Because there are two communities keenly interested in reducing the complexity of publicness:

The media industry benefits from things that are in a gray area being treated as “public”, because this makes it (at best) fair game for discussion or (at worst) raw materials to feed the insatiable need for new content.

The technology industry benefits from treating “public” as a binary state because handling more complex forms of privacy can be more expensive to accommodate in software, and because tech companies increasingly rely on the same advertising model which supports media, where public information is more valuable because it can be monetized.

These two powerful industries are enabled by a third: Policy. Policy makers and regulators are the only remaining group that could significantly affect the definition of what’s “public”. Thus far they, like all of society, have chosen to ignore the fact that our laws are wildly out of date in this regard. Everything from harassment laws to copyright battles to judicial decisions around privacy are all grounded in pre-Internet criteria of what constitutes public behavior or a public person. But educating lawmakers about the new, complex world of what’s public would be expensive, especially since it would be a battle against the combined force of the technology and media industries.

It’s no wonder that voices arguing for a more complex, nuanced definition of “public” aren’t being heard.

The Public vs. Media

Recent months have provided no shortage of reductive oversimplifications of “public”, usually voiced as condescending scolding. Some examples, based on an appealing-but-wrongheaded interpretation of social networking activity:

Hamilton Nolan, Gawker:

The things you write on Twitter are public. They are published on the world wide web. They can be read almost instantly by anyone with an internet connection on the planet Earth. This is not a bug in Twitter; it is a feature. Twitter is a thing that allows you to publish things, quickly, to the public.

Conveniently omitted in these articles is a definition of the word “public” in this context. Because in both cases what the author means by public is “suitable for use as a hook for this article”.

Jason Calacanis, CEO and publisher of Inside, makes explicit that appropriation of social media conversations by corporations for profit happens without consent.

It has so quickly become acceptable practice within mainstream web publishing companies to reuse people’s tweets as the substance of an article that special tools have sprung up to help them do so. But inside these newsrooms, there is no apparent debate over whether it’s any different to embed a tweet from the President of the United States or from a vulnerable young activist who might not have anticipated her words being attached to her real identity, where she can be targeted by anonymous harassers.

What if the public speech on Facebook and Twitter is more akin to a conversation happening between two people at a restaurant? Or two people speaking quietly at home, albeit near a window that happens to be open to the street? And if more than a billion people are active on various social networking applications each week, are we saying that there are now a billion public figures? When did we agree to let media redefine everyone who uses social networks as fair game, with no recourse and no framework for consent?

The same public sharing that constitutes investigative journalism against a politician can be destructive and demeaning harassment against ordinary citizens.

The conventional wisdom is “Don’t publish anything on social media that you wouldn’t want to see on the front page of the newspaper.” But this is an absurd and impossible standard. The same tools are being used for person-to-person conversations and for making grand pronouncements to the world, often by the same person at different times. Would we say “Don’t write anything in a sealed letter that you don’t want to see on the front page of the newspaper” simply because the technology exists to read that letter without opening it?

Most media outlets routinely take semi-public, gray-area conversations, and the information implicitly or explicitly revealed in them, and consider them to be fodder, with no need for approval from the creators of the messages. We see the exact same behavior happening from online harassers and activists, both of whom have a name for the act: doxxing.

The phenomenon of doxxing (revealing personal information about a person online) has made clear that public information exists in a context of power and consent, and we must construct our ethics in that context. We can’t do that if we are still pretending that taking information that was merely available and instead making it easily accessible is an act without any moral or ethical consequences.

The Public vs. Tech

Programmers and engineers who create software with controls for privacy have moved in recent years to an on/off model where content is either viewable to the entire world or only to a list of people whom a user identifies as “friends”. Obviously, reducing public status to a binary consideration is convenient for a medium where everything must ultimately be represented in binary code. But we can’t let society’s norms be defined by which features are least expensive for storing on a database server in the cloud.

At a deeper level, we have not reckoned with the fact that technology can make public things that were private in the past. The most common way this happens is because social networks like Facebook change their privacy controls unilaterally over time, making information that used to be private suddenly become public.

Facebook profile information that is publicly visible by default, for the first five years of the service. Source: http://mattmckeon.com/facebook-privacy/

While it’s usually discussed as a matter of changing privacy settings on Facebook, it’s important to note that the company is also redefining what public means on an ongoing basis. Indeed, the most consistent efforts Facebook has put into its Terms of Service changes over the past several years have been about cementing their ability to unilaterally make such changes while eliminating methods of recourse for users, such as prohibiting class action suits from being filed against the company.

But there’s another, more subtle, way in which the big technology companies are making formerly-private actions public. Because so many processes that used to happen in phone calls or on paper have now moved to digital systems that are connected to the Internet, many actions have become much more tangible and detailed.

Many smartphone users don’t realize that the photos they take often include the user’s geographic location hidden in the image. A regular user of a smartphone photo-sharing app who thinks she’s merely revealing her fondness for latte art may not realize that she’s providing a clear map of her exact location, stamped with the date and time accurate down to the second. By the standards of contemporary tech and media companies, displaying this information to the world in the form of “Here is a map showing where this person is every Tuesday at 9am ” is a perfectly acceptable thing to publish about hundreds of millions of people, without their consent, because these companies consider this information public.

This isn’t a theoretical concern — I’m cofounder of a company that gathers and analyzes a lot of social media data for users of our product. Even as a tiny startup, choosing not to publish user information that’s technically public can directly impact how many new users sign up and how much existing users come back to use the service. When we imagine those impacts for services that have hundreds of millions of users, when a tiny percentage increase in these metrics could materially impact what they report to shareholders, it’s easy to understand how the giant technology companies make their decisions.

The Public vs. Policy

Given that both the media and the tech industry have been claiming for years that “public” is a clear-cut, resolved concept, it is no surprise that government officials have believed them. Agencies, legislators and regulators aren’t going to proactively stir up the pot over such an esoteric concept.

Clearly, one reason law has stayed out of date in regard to what’s public is because two of our biggest industries profit from that anachronism. But another key reason is because a creeping expansion of what’s considered public enables one of the most effective tools for expanding the power of the state: surveillance.

Advancing technologies have made it cheaper than ever to harvest enormous quantities of data about nearly everyone. Much has rightly been written about the NSA’s monitoring of citizens, but precious little attention has been paid to the fact that their monitoring was made easy because tech companies routinely record everything that they can about the actions, activity and communications of the people who use their services. By continuing to stretch the definition of what’s public, and to expand the realm of what’s considered acceptable use of public information, we enable a pervasive surveillance culture.

Public Secrets

We’ve spent so many years being indoctrinated in this new, false definition of what is public that most people will still not concede that there is any complexity to the issue.

Users of social media are commonly portrayed as preening, self-absorbed wanna-be celebrities, so there is always an audience who will delight when those on social media are “punished” by having their words or actions used to shame or embarrass them in public. Even more kindhearted souls can find it seductively appealing to adopt the seemingly-straightforward logic of “if it’s visible online, it must be completely public”.

There are a lot of behaviors that are not entirely illegal that are profoundly destructive to an individual’s life, or to society’s fabric. Relying on legalistic definitions of “public” would only make sense if our legal system were thoughtful and current in its definition of the concept.

Yet the last, loudest argument of the apologists for abusive exploitation of nominally public information is that “it’s technically legal!” It is, in fact, usually completely legal to be a total asshole about other people’s activity in “public” places. In fact, very few forms of harassment fall under the narrow confines of what legally constitutes harassment.