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Definitions

Private behavior "occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and [that] information that has been provided for specific purposes by an individual...will not be made public (e.g., a medical record)" (45 CFR 46.102(e)(4)).

Public behavior then, is a behavior that, in the specific context, a reasonable person would NOT expect to be unobserved or not recorded. 

Role of Location

Note that in the definitions above, there is no mention of whether the behavior is occurring in a public or a private place. Certainly, many behaviors in private places (someone's home, for example) would be readily understood as private behaviors. However, behavior in public places might still be understood as private behavior. Context and expectation of privacy matter. 

The primary determining factors for whether behavior is "private" or "public" are the nature of the behavior and participants’ reasonable expectation of privacy, not merely the physical location where the behavior is taking place.

Examples

• Restaurants
  
  • Likely Public: What individuals buy at an open food court
  • Likely Private: A one-on-one conversation at a table
• Airports
  • Likely Public: Boarding patterns in the concourse
  • Likely Private: A traveler's private phone call in a quiet, semi‑enclosed lounge 
• Churches, synagogues, mosques, and other worship spaces
  • Likely Public: Crowd size at a public outdoor service
  • Likely Private: Conversations in a confessional or activity in a private prayer room
• Stadia and other sports venues
  • Likely Public: Cheering/noise levels of spectators in the open stands 
  • Likely Private: A discussion inside a team’s locker room or a one-on-one conversation in a private corner
• Schools, including elementary schools, middle schools, high schools, and colleges/universities
  • Likely Public: Student behavior walking across an open campus quad
  • Likely Private: Classroom discussions not intended for public observation
• Internet chat rooms and other private online spaces
  • Likely Public: Public posts on X
  • Likely Private: Closed-group posts, private messages, or messages on subscription-only forums 

Please take this distinction into account when completing the Interaction Research Exemption Determination Form or when describing observation research in a regular IRB application. As always, please contact the IRB Chair with questions or concerns.